“The trial court found that for 39 years Bogy had overtly and adversely used this land for access to the property, which entitled him to an easement by prescription.” —Wood, Judge 

Facts: Herbert and Juanita Bogy (Bogy) and The Willows, LLC (“Hass”) owned adjoining pieces of farmland in Jefferson County, Arkansas. Bogy cannot access a portion of his property because a Union Pacific railroad track bisects the property. Since 1972, Bogy and his farming tenants accessed that portion of the property by driving on a road that runs across Hass’s property. Bogy had never requested or received permission from Hass to use this road. In 2008, Hass blocked Bogy’s access to the road. Bogy sued, alleging that there existed a prescriptive easement across Hass’s property. The trial court granted a prescriptive easement to Bogy. Hass appealed this decision. 

Issue: Has a prescriptive easement been created? 

Language of the Court: In Arkansas, it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one’s use has been adverse to the true owner. This court has said that the statutory period of seven years applies to prescriptive easements. The trial court found that for 39 years Bogy had overtly and adversely used this land for access to the property, which entitled him to an easement by prescription. 

Decision: The court of appeals affirmed the trial court’s decision that granted Bogy a prescriptive easement to use the road that runs across Hass’s property. 

Ethics Questions: Is it ethical for a property owner to claim an easement across another party’s property when that party has not and will not give express permission to do so? Did Hass act ethically in blocking a road that had been used by Bogy for 39 years?