Arkansas Court Affirms Summary Judgment in Favor of Grantor of Warranty Easement Deed In Trespass Action.

The plaintiff executed a Warranty Easement Deed in favor of the United States in exchange for $1.5 million. The Deed placed plaintiff’s property in the Wetlands Reserve program with the USDA, but reserved to the plaintiff title, quiet enjoyment, and control of access to the property. Defendants owned the property to the south of the plaintiff’s, and granted a Pond easement to the United States permitting the overflow of water from the plaintiff’s property to run onto defendants’ property, if that should occur. The defendants claimed that the easement granted them the right to use the plaintiff’s property, and they also authorized third parties to do so. The plaintiff filed a trespass action against defendants, seeking to enjoin them from entering the plaintiff’s property and seeking to recoup money earned by the defendants in allowing others to hunt the wildlife. The district court entered summary judgment in favor of the plaintiff, and the appellate court affirmed. The Warranty Easement Deed did not place the plaintiff’s property in the public domain. Standing water in the easement area did not transform it into a navigable stream. The court stated that Arkansas law provides that an owner of part of a bed of a non-navigable stream has ownership of that part of the surface of the stream that lies above the portion of the bed of the stream it owns.  Johnson v. De Kros, No. CV-13-785, 2014 Ark. App. 254, 2014 Ark. App. LEXIS 318 (2014).

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