Cite as 2024 Ark. App. 263

ARKANSAS COURT OF APPEALS

DIVISIONS III & IV

No. CV-22-774

BRANDON LEE YARBERY, AS 

TRUSTEE OF THE BRANDON LEE

YARBERY BYPASS TRUST; PAUL E. 

RUSH AND CAROLYN SUE RUSH,

INDIVIDUALLY AND AS TRUSTEES 

OF THE PAUL E. RUSH AND 

CAROLYN SUE RUSH FAMILY TRUST 

OF 2008; MICHAEL SCOTT RUSH; 

JEFFREY BRIAN RUSH; AND MISTY 

TEAGUE, INDIVIDUALLY AND AS 

TRUSTEES OF THE PAUL E. RUSH 

AND CAROLYN SUE RUSH 

IRREVOCABLE AND UNAMENDABLE 

LIVING TRUST OF 2017

APPELLANTS/CROSS-APPELLEES

V.

LAHOMA EDWARDS

APPELLEE/CROSS-APPELLANT

Opinion Delivered April 17, 2024

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, 

GREENWOOD DISTRICT

[NO. 66GCV-21-171]

HONORABLE GREG MAGNESS, 

JUDGE

AFFIRMED ON DIRECT APPEAL; 

AFFIRMED ON CROSS-APPEAL

MIKE MURPHY, Judge

The appellants are property owners who access their lands by a road that runs across 

appellee Lahoma Edwards’s property. The circuit court granted the appellants a prescriptive

easement to use this road, and that easement is the subject of this appeal. Brandon Yarbery 

owns one tract of land, and the remaining appellants (“the Rushes”) own another separate

tract of land. On direct appeal, the appellants argue that the circuit court erred by limiting 
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the scope of the easement it granted them across Edwards’s land. On cross-appeal, Edwards 

argues that the circuit court erred in granting an easement at all. We affirm both the direct 

and the cross-appeal.

I. Introduction

On September 9, 2021, the Rushes and Yarbery sued Edwards for an easement by 

prescription. Following a bench trial, the circuit court found that the appellants had a 

prescriptive easement. In an amended order, the court explained that the easement was so 

the appellants could access their respective lands for the limited purposes of “ranching, 

farming, agriculture, hunting, fishing, recreation, and other personal uses (including the 

construction, maintenance, and use of structures such as barns, hunting lodges, or cabins),” 

but the easement “does not extend to the Yarbery Property or to the Rush Property for 

commercial or industrial uses (other than to the extent ranching, farming, hunting, or fishing 

would be considered such uses) or for single-family or multi-family residential housing.”

On direct appeal, the appellants assert that the circuit court erred by not allowing 

them to use the easement for the purpose of building and accessing single-family homes. On 

cross-appeal, Edwards argues that the circuit court erred by granting an easement by 

prescription because the adjacent landowners’ use was permissive, not adverse. For the sake 

of discussion, we will address the cross-appeal first.

II. Easement by Prescription

Lahoma Edwards purchased her land with her late husband, Gerald Edwards, in 

1988. When they purchased their land in 1988, the other respective landowners were Kermit 
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McNabb (Rush property) and Patricia Been (Yarbery property). McNabb gifted his land to 

Foy Brown, and Brown later sold it to the current Rushes’ predecessors. Patricia Been was 

Brandon Yarbery’s grandmother. McNabb’s title can be traced to 1955, and Been was deeded 

her tract in 1968. 

The road at issue begins at Mount Harmony Road, crosses the Edwards property, 

crosses the Rush property, and continues into the Yarbery property. There is a gate at the 

Mount Harmony Road entrance, and all the parties have a way to unlock the gate. Everyone 

appreciates the gate staying locked, especially Edwards, who does not want unnecessary traffic 

or trash on her land. The gate, as it stands today, was built by the Edwards family around 

1988, but testimony by Foy Brown established that there has been some form of a gate since 

at least 1940. Foy Brown testified the gate was substantial enough that when he and his twin 

brother were both eight, they would ride around with McNabb, and it would take both of 

them to open the gate. Brown explained that he got permission to use the road from McNabb 

(“it was [McNabb]’s road”) and McNabb had others maintain the road for him. 

Edwards family members testified that they have never minded allowing the 

neighbors to use the road to check on their cattle and land. When they put the new gate up 

in 1988, they locked it with a combination lock and gave the code to the landowners behind 

the gate. By trial, there were multiple locks on the gate, daisy-chained together, so that several 

parties and their invitees had their own locks on it.

Yarbery testified that the lock he has on the gate was his grandfather’s lock, and it 

had been there at least twenty years. He said his grandparents “never had permission to go 
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in there” but that his grandfather made modifications to, and did upkeep on, the road. 

Yarbery has also put thousands of dollars into maintaining and improving the entire

roadway, including the Edwards parcel.

There is no disagreement that the Rushes, Yarberry, and their predecessors used the 

road that crosses Edwards’s property to access their own tracts. The issue is whether that use 

was permissive. The court took the issue under advisement and issued a subsequent written 

order, which was later amended. That order provided the following detailed findings:

Plaintiff Yarbery established that the Yarbery Property has been in his family 

for generations. See Plaintiffs Exhibit D. Plaintiff Yarbery testified that he 

remembered using the Roadway with his grandfather and prior owner, Buren Been, 

to access his family property in the mid-1980’s when he was young. Plaintiff Yarbery 

further testified that he has used the Roadway thousands of times over his lifetime 

and neither he nor his grandparents, to his knowledge, ever asked permission from 

Defendant to use the Roadway. Plaintiff Yarbery also testified that he has spent at 

least $5,000.00 to maintain and improve the Roadway and that he and his 

grandfather maintained the Roadway across Defendant’s property without the 

permission of Defendant.

Plaintiff Rush obtained his property in 2009. See Plaintiffs Exhibits F-H. 

Plaintiff Rush testified that he has used the Roadway since purchasing the property 

and has also helped to maintain it by bush hoggin and clearing fallen trees and limbs. 

Plaintiff Rush did not believe that he was using the Roadway with permission of 

Defendant as he believed that he was using it in the same manner as did Foy Brown 

from whom he purchased the property.

Foy Brown is a third party who testified at trial. Mr. Brown stated that he 

began using the Roadway to access the Rush Property as early as the mid-1940’s. Mr. 

Brown testified that the Roadway was used by Kermit McNabb as a regular practice 

when Mr. McNabb owned the Rush Property. Later, Mr. McNabb gifted the property 

to Mr. Brown who continued to use the Roadway without any permission from 

Defendant. Mr. Brown owned the Rush Property from 1998 to 2009 when he sold it 

to Plaintiff Paul Rush.

On cross-appeal, Edwards argues that the circuit court’s findings are not supported 
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by a preponderance of the evidence. She explains that the adjoining landowners’ use was 

permissive because the gate had a lock on it. “Only those with permission—keys to a lock—

are allowed”; therefore, the circuit court erroneously found that use by the appellants and 

their predecessors was adverse. 

One asserting an easement by prescription must show by a preponderance of the 

evidence that his or her use has been adverse to the true owner and under a claim of right 

for the statutory period. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). Where 

there is usage of a passageway over land, whether it be by permission or otherwise, if that 

usage continues openly for seven years after the landowner has actual knowledge that the 

usage is adverse to his interest or where the usage continues for seven years after the facts 

and circumstances of the prior usage are such that the landowner would be presumed to 

know the usage was adverse, then such usage ripens into an absolute right. Fullenwider v.

Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). 

A prescriptive easement, once attached, is permanent and irrevocable. Carson v. Cnty.

of Drew, 354 Ark. 621, 626–27, 128 S.W.3d 423, 427. This means that the immediate 

landowners need not establish their use was adverse; they may be able to establish that their 

predecessors-in-titles’ use was adverse. Fox v. Alexander, 2023 Ark. App. 247, at 5, 668 S.W.3d 

191, 195 (“When an easement is annexed as an appurtenance to land, whether by express or 

implied grant or reservation, or by prescription, it passes with a transfer of the land, even 

though it may not be specifically mentioned in the instrument of transfer.”).

The determination of whether the use of a roadway is adverse or permissive is a 
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question of fact, and a circuit court’s finding with respect to the existence of a prescriptive 

easement will not be reversed by this court unless it is clearly erroneous. Camp Nine Co. v. 

Firehunt, Inc., 2023 Ark. App. 421, at 9, 676 S.W.3d 284, 290. This is a matter sounding in 

equity, which we review de novo. Inman v. Hornbeck, 2022 Ark. App. 522, at 4, 657 S.W.3d 

200, 204.

Edwards contends that the court erred by finding that the use was adverse in light of 

the forty years of use, maintenance, and improvements. She cites Baysinger v. Biggers, 100 Ark. 

App. 109, 111–12, 265 S.W.3d 144, 145–46 (2007), for the proposition that use alone

without objection was not sufficient to put the servient tenement landowner on notice that 

the use was hostile. Notably, however, Baysinger was decided off a record for a temporary 

injunction, and in reversing, we explained that the record was lacking significantly in any 

evidence supporting that the use was adverse whatsoever. “Significantly, even [the party 

claiming the right] did not testify that his use was adverse, hostile, or under a claim of right.” 

Baysinger, 100 Ark. App. at 111, 265 S.W.3d at 146.

Baysinger, in explaining that “[t]ime alone will not suffice to transform permissive use 

into legal title,” cites McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). Id. at 112, 265 

S.W.3d at 146. But in McGill, the court actually held that when an alley had been kept open 

and used for about nineteen years, coupled with the way the fence was constructed along it, 

“the length of time which it was used without objection is sufficient to show that use was 

made of the alley by the owners of adjoining property as a matter of right and not as a matter 

of permission.” McGill, 172 Ark. at 393, 288 S.W. at 934.
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Like McGill, the lock could indicate use as a matter of right and not one of permission. 

And because a determination of whether the use of a roadway is adverse or permissive is a 

question of fact, we decline to put ourselves in the place of the circuit court to weigh that 

evidence. Camp Nine Co., 2023 Ark. App. 421, at 9, 676 S.W.3d at 290–91. 

Edwards also cites Hoover v. Smith, 248 Ark. 443, 451 S.W.2d 877 (1970), for the 

proposition that erection of a gate “constitutes notice to the public that any travel thereon 

is by permission of the owner and not as a matter of right to the public or to any individual 

traveling the road.” But that makes the distinction that the notice is to the public. Here, we 

are concerned with the rights of only a few landowners. This is evident because in the same 

paragraph, the Hoover court explains that “erection and maintenance of a gate by an owner 

does not give notice that subsequent use of a way across his lands is permissive and not as a 

matter of right, unless it was maintained as a means of asserting the owner’s dominion over 

the road.” 248 Ark. at 446, 451 S.W.2d at 879. This means that we look to the owner’s 

intent in placing and maintaining the gate. Id. Here, because there was testimony that there 

was always a gate, and because the intent was to keep the general public out, it stands to 

reason that the Edwards were asserting dominion over the road only as it relates to the 

general public. 

Instead, the facts here resemble those in Smith v. Loyd, 68 Ark. App. 127, 5 S.W.3d 

74 (1999), and Jackson v. Downs, 2022 Ark. App. 17, 639 S.W.3d 416.

In Smith, the appellees asserted they had a prescriptive easement and the appellant 

argued the use was permissive. The appellant contended that the absence of proof that the 
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appellees or their predecessors “performed some other activity besides driving up and down 

the road” was fatal to their claim of a prescriptive easement. 68 Ark. App. at 130, 5 S.W.3d 

at 76. We reasoned, however, that given that the roadway was “used without complaint by 

the owner of record for nearly forty years” the permissive-use presumption had been 

overcome. Id. at 131, 5 S.W.3d at 76.

In Jackson, the appellant advanced that his land was wild, unenclosed, and 

unimproved, and therefore, a presumption that the use was permissive existed; but we held 

that an easement by prescription existed because the appellant should have known that the 

use was adverse given the use and the length of time that passed. Jackson, 2022 Ark. App. 17 

at 7. Even permissive use can ripen into adverse use when the use continues openly for seven 

years after the landowner or his predecessors know the use is adverse or if they, under the 

circumstances, are presumed to know the use is adverse. Id.

Here, it was not erroneous for the court to rely on the length of time of use, 

maintenance performed, improvements made, and even the existence of a gate and locks in 

concluding the appellants’ use was as a matter of right. We affirm on cross-appeal. 

III. Scope of Use

This brings us to the appellants’ direct appeal. On direct, the appellants contend that 

the circuit court erred in prohibiting the use of the easement to build and access single-family 

homes. In the order, the court explained that the easement it granted was 

for the restricted purposes of accessing their lands for ranching, farming, agriculture, 

hunting, fishing, recreation, and other personal uses (including the construction, 

maintenance, and use of structures such as barns, hunting lodges, or cabins), but 
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subject to the perpetual obligation that [the appellants] must secure the Mt. Harmony 

Gate to protect the interests of the owners of the Edwards Property. The prescriptive

easement granted by this Order extends to [appellants’] guests, lessors, licensees, and 

invitees for the approved land uses. The prescriptive easement granted by this Order 

does not extend to the Yarbery Property or to the Rush Property for commercial or

industrial uses (other than to the extent ranching, farming, hunting, or fishing would 

be considered such uses) or for single-family or multi-family residential housing.

The court explained that it was fashioning this equitable remedy in accordance with 

the evidence. See generally Branscum v. Nelson, 2022 Ark. App. 354, at 3, 654 S.W.3d 343, 

345. 

When an easement is acquired by prescription, the nature of the use cannot be 

changed to render it more burdensome to the servient estate than it was during the 

prescriptive period. Williams v. Owen, 247 Ark. 42, 444 S.W.2d 237 (1969). Because we hold 

there was no error in establishing an easement by prescription, we evaluate if there was 

evidence to support the court’s finding that the scope of the easement should be limited

such that it was.

In the case of an easement by prescription, both its creation and extent are ascertained 

from the adverse use of the property over a long period of time. Jordan v. Guinn, 253 Ark. 

315, 485 S.W.2d 715 (1972). A circuit court’s findings in this regard will not be reversed 

unless they are clearly erroneous. Wallner v. Johnson, 21 Ark. App. 124, 730 S.W.2d 253 

(1987). Here, significant testimony established that the appellants and their predecessors

used their properties for farming, ranching, hunting, fishing, and other types of recreation. 

There was some testimony by Yarbery there may have been a homestead on the Rush 

property “about a time period that predates probably electricity even getting to Greenwood. 
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. . . Early nineteen hundreds.” But from the bench on the motion for rehearing, the court

explained that it could not ascertain from the evidence the extent of the use of that site, and 

my intention was that the plaintiffs continue to be able to use their property the way 

they’ve used it. And so the question is -- I don’t want to limit their use to not being 

able to have a cabin out there, or you know, a place to stay. That was not my intention 

is to say you can only go out there for day use. But by the same token, I don’t like the 

idea that you proposed that, well, if they sell me an acre, I’m going to build a house 

out there. I think that goes beyond the historic use, because otherwise, he can sell me 

an acre and everybody here an acre, and all of a sudden there’s ten houses out there[.]

Where the owner of land has a right to use it, subject to the prescriptive right of another to 

travel a well-defined designated route across the land, some degree of inconvenience is to be 

expected and tolerated in the exercise of these overlapping rights, and the conflicts that arise 

in the exercise of such rights are measured by reasonableness of interference of one with the 

other. Massee v. Schiller, 243 Ark. 572, 579, 420 S.W.2d 839, 843 (1967). What is reasonable 

or not reasonable depends on the facts and circumstances of each case and is a matter on 

which the minds of reasonable men may differ. Id. A determination of the scope of a 

prescriptive easement should focus on what a landowner in the position of the owner of the 

servient estate should reasonably have expected to lose by failing to interrupt the adverse use 

before the prescriptive period had run. 25 Am. Jur. 2d Easements and Licenses § 66, Westlaw 

(database updated Feb. 2024).

Here, the court was careful to limit the scope of the use of the easement to the 

historical use of the dominant tenements. Given the record before it and the court’s 

reasoning, we hold that the limitation was not clearly erroneous. 

Affirmed on direct appeal; affirmed on cross-appeal.
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ABRAMSON, GRUBER, and BROWN, JJ., agree. 

BARRETT and HIXSON, JJ., dissent.

STEPHANIE POTTER BARRETT, Judge, dissenting. The majority decision continues to 

confuse—or more accurately, ignore—the elements necessary to prove a prescriptive easement. 

If the public, the bar, and even the bench look to us for certainty and consistency in 

application of the law, their look will be in vain. Like its closely related sister “adverse 

possession,” prescriptive easements “are not favored in the law, since they necessarily work 

corresponding losses or forfeitures in the rights of other persons.” Carson v. Cnty. of Drew, 

354 Ark. 621, 625, 128 S.W.3d 423, 426 (quoting 25 Am. Jur. 2d Easements and Licenses § 

45 (1996)). It is imperative to note and remember that this case does not pertain to easements 

by necessity, which is another area of law ripe for confusion. This case solely concerns the 

requirements to prove a prescriptive easement.

The pertinent facts are not in dispute. Edwards, Rush, and Yarbery own adjacent 

tracts of land. Edwards purchased his tract in 1988, the Rushes purchased their tract in 

2009, and Yarbery testified that his tract had been in his family for generations. A twelvefoot-wide dirt lane (“dirt lane’) exits Mount Harmony Road commencing on the Edwards 

tract and then meanders across the Rush and Yarbery tracts. Shortly after Edwards 

purchased his tract in 1988, he built a gate where the dirt lane exits Mount Harmony Road. 

Edwards placed a combination lock on his gate. The previous occupiers of the Rush and 

Yarbery property routinely requested permission from Edwards to use the dirt lane to check 

on their cattle. Edwards obliged and routinely gave them neighborly permission to use the 
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dirt lane and provided the combination to his lock. Over the years, the lock on Edwards’s 

gate changed from a single combination lock to what is described as a “daisy-chain” locking 

system where each landowner had his/her own key to his/her respective lock that was looped 

through a log chain. There is no disagreement that the Rushes, Yarbery, and their 

predecessors used the dirt lane that crosses Edwards’s property to access their own property. 

This system of permissive ingress and egress has been in place for over thirty years since at 

least 1988 when Edwards purchased his tract.

For the sake of simplicity, we acknowledge that all owners and occupiers of the three 

tracts occasionally performed maintenance on the dirt lane. However, as explained below, 

mere maintenance does not place an owner of a tract on notice of adverse conduct.

However, everything changed in 2020 when the Rushes and Yarberys decided to 

commercially develop their respective property. The Rushes and the Yarberys wanted to use 

the dirt lane crossing Edwards’s property for ingress and egress for their 

developments. Edwards disagreed. Hence, the disagreement concerning the use of the dirt 

lane was conceived.

The only issue is whether the historical use of the dirt lane as it crosses Edwards’s

tract by the Rushes and Yarberys was by permission of the Edwardses. If that use was 

permissive, then the only avenue by which the Rushes and Yarberys could gain any rights to 

Edwards’s tract would be to prove the establishment of a prescriptive easement along the dirt 

lane. At trial, the circuit court split the baby leaving both sides dissatisfied. The circuit court 

found that the Rushes and the Yarberys established a prescriptive easement on Edwards’s
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tract along the dirt lane; however, the court found that the prescriptive easement could be 

used only for “the limited purposes of accessing their lands for ranching, farming, 

agriculture, hunting, fishing, recreation, and other personal uses” but not for “commercial 

uses . . . or for multi-family residential purposes such as planning or constructing 

subdivisions.”

That leads us to two questions: (1) whether the use of the dirt lane on Edwards’s tract 

by the Rushes and Yarberys was by permission; and (2) whether the Rushes and Yarberys 

proved the existence of a prescriptive easement. Even a cursory review of the evidence reveals

that the use by the Rushes and Yarberys across the Edwards tract was by permission. Over 

thirty years ago, Edwards bought his tract and constructed a locked gate across the dirt lane. 

For thirty years, the Rushes and Yarberys or their predecessors in title requested that Edwards 

allow them to cross his tract to check their cattle. For thirty years, Edwards gave them the 

combination to his lock. Clearly, the use by the Rushes and Yarberys across Edwards’s tract 

was permissive. That leads to the question of whether the Rushes and Yarberys proved the 

existence of a prescriptive easement across the Edwards tract.

To establish a prescriptive easement, there must be an overt act proved against the 

interests of the landowner (Edwards) to show that the permissive user (Rushes and Yarberys) 

has shown an adverse claim to the roadway. Owners Ass’n of Foxcroft Woods v. Foxglen, 346 

Ark. 354, 57 S.W.3d 187 (2001); Stone v. Halliburton, 244 Ark. 392, 425 S.W.2d 325 (1968). 

It has also been described that the true owner (Edwards) must either know or be presumed 

to know of the adverse character of the claimant’s (Rushes and Yarberys) possession based 
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on the facts and circumstances of the claimant’s use. The alternative line of cases dating to

Manitowoc Remanufacturing v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991), hold that the 

claimant must take affirmative steps to put the true owner on notice of an adverse claim to 

support a prescriptive easement. Arkansas case law clearly requires that the claimant prove 

adverse use for seven years. There must be a “distinct and positive assertion . . . of a right 

hostile to the owner.” Harper v. Hannibal, 241 Ark. 508, 408 S.W.2d 591 (1966). Not only 

has this court held that the claimant must prove an overt adverse act, but we have also held 

in Pop-A-Duck, Inc. v. Gardner, 2022 Ark. App. 88, at 11, 642 S.W.3d 220, 228, that “length 

of use accompanied by the fact that there had been no objection” was insufficient to establish 

the right to a prescriptive easement. In short, where is the overt act by the Rushes and 

Yarberys to place Edwards on notice? Where is the adverse conduct? Where are the 

affirmative steps? Where is the distinct and positive hostile assertion? Where are the seven 

years? There are none. If this court eliminates the requirement of showing an adverse or 

overt act by the permissive user when the landowner permits a neighbor to use the land for 

the claimant’s benefit, then the rights of the owner of real property diminish 

considerably. The law is clear: permissive use cannot transform into adverse use or 

prescriptive use absent overt or adverse conduct sufficient to place the owner on notice of 

hostility. The majority’s decision is a major shift in property law, which, for all practical 

purposes, eliminates the element of permissive use under a claim of right to establish a 

prescriptive easement, finding that long-term use will constitute abandonment of the 

permissive use. While giving lip service to the principle that there must be some overt act to 
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put the landowner on notice of the adverse use, that requirement has been discarded like 

yesterday’s trash.

I would be remiss if I did not mention Yarbery’s inapposite use of tacking by a 

previous owner. Yarberry had not owned the property for the requisite period of time to 

establish adverse possession of the dirt lane under a claim of right when he brought the 

lawsuit. The statutory period of seven years for adverse possession applies to prescriptive

easements. Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984); Duty v. Vinson, 228 

Ark. 617, 309 S.W.2d 318 (1958); Brundidge v. O’Neal, 213 Ark. 213, 210 S.W.2d 305 

(1948). In finding that a prescriptive easement should be granted, the court was forced to 

bootstrap Yarbery’s adverse claim to that of his predecessor in title (Been) to permit a finding 

that an extended period of adverse claim of right to the dirt lane existed by the rule of 

tacking. “As a general proposition, an adverse occupant cannot tack the possession of a 

prior occupant to perfect adverse title in himself where predecessor did not or could not 

claim the land adversely.” 2 C.J.S. Adverse Possession § 132; St. Louis Union Tr. Co. v. Smith, 

207 Ark. 815, 182 S.W.2d 945 (1944). Not only did Yarbery use the Edwards tract by 

permission, Yarbery’s predecessor in title also used the dirt lane crossing Edwards’s property 

by permission. The circuit court erred by tacking the adverse possession (if one could be 

found) of the prior occupants (McNabb and Been) to that of Yarbery and Rush. 

In conclusion, the circuit court erred in finding that the Rushes and Yarberys proved 

the existence of a prescriptive easement over Edwards’s property. I would reverse.

HIXSON, J., joins.
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Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Walters, Allison, Parker 

& Estell, by: Derick Allison, for appellants/cross-appellees.

Jones, Jackson, Moll, McGinnis & Stocks, PLC, by: J. Dalton Person, for appellee/crossappellant.