Could a utility claim an easement across an Arkansas levee district's right-of-way or charge the district to relocate its poles?

Plain-English summary

The Attorney General said a utility could, in theory, hold a right-of-way across property where a levee district already held an easement. The utility's right had to be lawfully obtained and could not interfere with the district's established right-of-way. A court or other fact-finder would have to examine the deeds and other evidence to decide whether both easements existed and which had priority.

The AG gave a firm answer on adverse possession: a utility could not acquire rights that defeated a levee district's easement through adverse possession or a prescriptive easement. He read § 22-1-206 as protecting a levee district's real-property and easement rights from those claims.

The opinion did not decide whether a utility had to move particular poles or who had to pay the relocation cost. Those answers depended on the parties' contractual rights, easements, and any justified use of eminent domain.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2013

Levee district commissioners

The opinion did not treat a levee district's right-of-way as automatically exclusive. It did, however, conclude that another easement could not interfere with the district's established rights and that those rights could not be defeated by adverse possession.

Utility companies

A utility could hold a separate, properly obtained easement over the same property if the rights were compatible. The utility could not rely on long adverse use to acquire a prescriptive right that compromised the levee district's easement.

Property and local-government attorneys

The AG would not decide the scope or priority of the recorded deeds without reviewing the documents and resolving facts. He likewise left pole-relocation duties and expenses to a fact-specific inquiry.

Common questions

Could a utility easement cross a levee district right-of-way?

Potentially. The AG said it could if the utility's easement was duly obtained and did not conflict with the levee district's existing rights.

Could a utility acquire the district's right-of-way by adverse possession?

No. The opinion read § 22-1-206 as barring adverse-possession and prescriptive-easement claims against a levee district's property rights.

Did the district's period of inactivity cause it to lose its easements?

The opinion did not decide abandonment. Its analysis expressly assumed no one was claiming that the district abandoned its easements during the reported inactive period.

Who had to pay to move utility poles that interfered with levee work?

The AG gave no general answer. He said the result depended on the parties' contractual rights, their easements, and any justified exercise of eminent domain.

Background and statutory framework

The request concerned the Running Water Levee District in Randolph and Lawrence Counties. The district reportedly stopped levee maintenance in the 1960s but was never dissolved and reorganized in 2009 after a flood. The request suggested that utilities placed poles on district rights-of-way during the inactive period, later moved them, and sought reimbursement from the district.

The opinion treated a right-of-way as a type of easement. General Arkansas law required a party claiming a prescriptive easement to prove adverse use under a claim of right for the statutory period. For levee districts, however, § 22-1-206 barred acquisition of district property or easement rights by adverse possession or adverse occupancy.

Citations and references

Statute:

• § 22-1-206

Cases:

• Carson v. Drew County, 354 Ark. 621, 625, 128 S.W.3d 423 (2003)
• Williams v. Little Rock School District, 347 Ark. 637, 66 S.W.3d 590 (2002)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-038

July 8, 2013

The Honorable Scott Baltz

State Representative

4589 Highway 90 West
Pocahontas, Arkansas 72455-1231

Dear Representative Baltz:

I am writing in response to your request for my opinion on the following questions:

1. Can utility companies have rights-of-way on top of levee
   rights-of-way?

2. Can utility companies use adverse possession or prescriptive
   easement to acquire rights-of-way on levee rights-of-way?

3. Can utility companies charge levee districts for moving utility
   poles off of levee rights-of-way when the poles interfere with
   operation or maintenance?

You report that these questions relate to the Running Water Levee District (the “—District”) in Randolph and Lawrence Counties. You have provided the following as background information:

e Was created under Special Acts of Arkansas — Acts 386 of 1917 and amended in Regular Session 20[0]9 (House [B]ill 1349, Act 279). J"!

’ The District was formed in 1917 as “a body corporate and politic” pursuant to legislation that was amended in 2009. Acts 1917, No. 386, as amended by Acts 2009, No. 279.

323 CENTER STREET, Suite 200 * LittLe Rock, ARKANSAS 72201
TELEPHONE (501) 682-2007 * Fax (501) 682-8084
INTERNET WEBSITE °* http://www.ag.state.ar.us/

The Honorable Scott Baltz
State Representative
Opinion No. 2013-038
Page 2

e Levee Board has copies of Right-of-Way Deeds filed in Circuit Clerk’s office[.]

e The Commissioners of Running Water Levee District
discontinued maintenance on the levee in the 1960’s. The Board
was never dissolved and was reorganized in 2009, after the flood.

Although I am not a finder of fact, I gather from the foregoing that the unidentified utility companies — presumably during the period of District inactivity — erected poles on the District’s rights-of-way. I am informed that the poles have been relocated and the utility is seeking reimbursement of its expenses from the District.

RESPONSE

With respect to your first question, although a utility might under certain circumstances obtain a right-of-way “on top of’ a levee right-of-way, in my opinion, the utility’s right-of-way could not interfere with the established right-of- way of the levee district. Only a finder of fact in any given case could determine the existence and the relative priority of the respective parties’ rights-of-way. In my opinion, the answer to your second question is “no,” With respect to your third question, only a finder of fact could determine in any given instance whether a utility was (a) obliged to move its utility poles off of a levee right-of-way and (b) if so, whether the utility was obliged to pay for doing so.

Question 1; Can utility companies have rights-of-way on top of levee rights-of-way?

A utility company might in theory obtain a right-of-way across property upon which a levee district owns a right-of-way, so long as the utility’s right-of-way has been duly obtained and does not conflict with a levee district’s already existing easement rights. Only a finder of fact could determine, however, whether these conditions have been met in any particular case.

? A right-of-way is a variety of easement. See, e.g., MacSteel vy. Arkansas Oklahoma Gas Corp., 362 Ark. 22, 31, 210 S.W.3d 878 (2005); Arkansas State Highway Commission v. Townsend, 313 Ark. 702, 705, 858 S.W.2d 66 (1993); Hannum y. Bella Vista Village, 279 Ark. 49, 51, 611 S.W.2d 756 (1981) (each addressing a “right of way” obtained by “easement”); Gurdon & Fort Smith Railroad Company v. Vaught,

The Honorable Scott Baltz
State Representative
Opinion No. 2013-038
Page 3

Multiple easements attached to the same property are obviously quite common — as illustrated most cleanly, perhaps, in the simultaneous use of dedicated public rights-of-way by various entities and individuals.’ Assessing the relative force of dual easements of the sort you describe might simply be a matter of weighing discrete contractual rights, the scope and relative priority of which only a court could determine. I will note in this regard that you reference various deeds on file apparently memorializing the District’s easements. I have not reviewed these documents and am neither situated nor authorized to opine regarding their legal significance. I am further unable to opine regarding what contractual rights, if any, the utility may have with respect to the location of its lines on the District’s rights-of-way.

Neither the legislation forming the District, which is referenced in your request, nor any general proposition of law mandates that a levee district’s right-of-way be deemed exclusive. Only a finder of fact could determine the relative rights of a district and a utility company involved in a dispute regarding what they claim to be their respective easements and, as appear to be at issue in the case, the financial responsibility of relocating utility poles to accommodate levee operations."

Question 2; Can utility companies use adverse possession or prescriptive easement to acquire rights-of-way on levee rights-of-way?

In my opinion, the answer to this question is “no.”

97 Ark. 234, 237, 133 S.W. 1019 (1911) (“A right-of-way is but an easement... .). The Arkansas Supreme Court has generally defined an easement as “a right which one person has to use the land of another for a specific purpose.” Loyd v. Southwest Ark. Utilities Corp., 264 Ark. 818, 825, 58 S.W.2d 935 (1979),

3 Multiple utility companies, for instance, regularly occupy easements dedicated as public rights-of-way. See, e.g., Southwestern Bell Telephone Co. v, City of Fayetteville, 271 Ark. 630, 609 S.W.2d 914 (1980) (addressing the issue of who bears the cost of relocating two utility companies’ lines occupying a public right-of-way that was widened and extended). A right-of-way available for transportation by more than one individual is further of necessity a multiple easement. See 25 Am.Jur.2d, Easements and Licenses § 5 (2013) (“The essential feature of a highway is that it is a road or way open to the use of the public, while a private way relates to that class of easements in which a particular person or particular description or class of persons, as distinguished from the general public, has an interest or right.”).

• See response to question 3, infra.

The Honorable Scott Baltz
State Representative
Opinion No, 2013-038
Page 4

Based upon your factual recitation, the District apparently obtained a number of rights-of-way, which were and remain duly filed of record with the circuit clerk. I am unaware of the circumstances under which these easements were obtained, the scope of their terms or the factors that bear on their continuing effectiveness.” Both your question and your factual recitation suggest that the utility companies may have erected their poles on District rights-of-way without express authorization to do so, possibly during the reported period of District inactivity from the 1960’s until 2009. As I interpret your question, you are asking whether the utility may have obtained a prescriptive easement over the property at issue, in a manner that conflicts with the District’s competing easement rights, during the period of the District’s inactivity.°

The Arkansas Supreme Court has declared the following regarding prescriptive easements:

Like adverse possession, “prescriptive easements . . . are not favored in the law, since they necessarily work corresponding losses or forfeitures in the rights of other persons.” ... 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 and under a claim of right for the statutory period.... This court has said that the statutory period of seven years for adverse possession applies to prescriptive easements.’

° The only reference to rights-of-way in Act 386 affords District officials and their contractors “the right to pass over all the lands of the district” when “engaged in levee work.” /d. at § 15. This right of access apparently amounts to a distinct statutory easement apart from the recorded easements referenced in your question. See Loyd, supra n. 2, 264 Ark. at 825 (characterizing a “right of ingress and egress” to access utility transmission lines as “separate and distinct” from, rather than merely “incident to,” the utility easement itself). I am unaware of the circumstances attending the actual construction of the levees. I will note in this regard that the Act defines the District’s purpose as being only “to maintain the system of levees along the Black [R]iver hitherto erected therein.” Acts 1917, No, 386, § 3 (emphasis added).

° This paraphrase of your concern reflects an assumption that no one is alleging the District’s abandonment of its easements during the apparent period of District inactivity. See Bank of Fayetteville y. Matilda's, 304 Ark. 518, 520 803 S.W.2d 549 (1991) (“A right-of-way is but an easement, which will be held to be abandoned with the intention to abandon and the acts by which such intention is carried into effect clearly indicate such abandonment.”)

” Carson v. Drew County, 354 Ark. 621, 625, 128 S.W.3d 423 (2003) (citations omitted).

The Honorable Scott Baltz
State Representative
Opinion No. 2013-038
Page 5

Specifically with respect to levee-district easements, any competing easement claim based upon prescription is not merely disfavored, but rather is banned outright.? The Arkansas Code sets forth this ban as follows:

a) As used in this section, a “levee district” means... :

(1)... [A]Jny ... levee district formed by an act of the General Assembly;

(b)(1) No title or right of possession to property of a levee district or any portion of a district’s property shall be acquired by adverse possession or adverse occupancy.

(2) No easement or right of way of a levee district for flowage, storage rights, and any other servitude upon, over, and across any lands or any portion of lands shall be acquired by adverse possession or adverse occupancy.

(c) The real property rights of a levee district shall not be defeated in any cause of action or proceeding by reason of adverse possession or adverse occupancy of a district’s property or any portion of a district’s property, where the parties claiming the adverse possession commence legal action after July 16, 2003.°

I appreciate that the highlighted portion of this statute is ambiguous in that it could be read as foreclosing either (a) a levee district from acquiring an easement by prescription or (b) anyone from acquiring by prescription a levee district’s existing easement.'? The fact that the legislature intended the latter meaning, however, is

® This ban marks an exception to the general rule reflected in the following statement of hornbook law: “An easement may be lost by possession and use by one other than the easement owner in a manner adverse to the exercise of the easement, That is, an easement may be extinguished by adverse possession.” 25 Am.Jur.2d: Easements and Licenses in Real Property § 102 (2013) (footnotes omitted).

° ACA. § 22-1-206 (Repl. 2004) (emphasis added). This statute was enacted pursuant to Acts 2003, No. 861, § 1,

'° Although the statute uses the terms “adverse possession” and “adverse occupancy” rather than “prescriptive easement,” these terms are interchangeable in the context here at issue. See Bobo v. Jones,

The Honorable Scott Baltz
State Representative
Opinion No. 2013-038
Page 6

clearly reflected in the title of the legislation just quoted: “AN ACT TO PROVIDE THAT A LEVEE IMPROVEMENT DISTRICT SHALL NOT LOSE REAL PROPERTY OR EASEMENTS OF THE DISTRICT TO ADVERSE POSSESSION; AND FOR OTHER PURPOSES.”"! As a general rule of statutory construction, it is appropriate to consider the act’s title in determining legislative intent.

This statute, which is presumed constitutional,’® thus declares that a levee district’s rights in real property, including easement rights, cannot be defeated by adverse possession through prescription. In my opinion, then, assuming a utility company has occupied an easement in a manner that compromises a levce district’s easement rights — a factual assumption I am neither equipped nor authorized to test in this particular case — the utility could not justify its occupancy by advancing a theory of adverse possession.

Question 3: Can utility companies charge levee districts for moving utility poles off of levee rights-of-way when the poles interfere with operation or maintenance?

I cannot provide a general answer to this question. Only a finder of fact could determine in any particular instance both whether the utility is indeed obliged to move its poles and whether, if so, the utility is obligated to defray the expense of doing so. The pertinent factual inquiry in every case would involve reviewing any

364 Ark. 564, 573, 222 S.W.3d 197 (2006) (“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 and under a claim of right for the statutory period.”); Cook v. Ratliff, 104 Ark. App. 335, 337, 292 S.W.3d 839 (2009).

"! Acts 2003, No. 861. The Code contains a virtually identical statute dealing with drainage districts, which contains the same ambiguity, whose resolution likewise inheres in the title of the act codified in the statute. See A.C.A. § 22-1-205 (Repl. 2004), as enacted by Acts 2001, No. 1312, § 1. Accepted rules of statutory construction provide that the title of an act, although not controlling, may serve to resolve ambiguities in the body of the act. See, e.g., Routh Wrecker Service Inc. v, Wins, 312 Ark, 123, 847 S.W.2d 707 (1993).

? Williams v. Little Rock School District, 347 Ark. 637, 66 S.W.3d 590 (2002); Routh Wrecker Service v. Wins, 312 Ark. 123, 847 S.W.2d 707 (1993).

See Paschal y. State, 2012 Ark. 127, 8 (“Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute.”).

The Honorable Scott Baltz
State Representative
Opinion No. 2013-038
Page 7

contractual rights possessed by the utility and the levee district, as well as any justified exercise of the power of eminent domain."

Assistant Attorney Gencral Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,
VA ,

USTIN McDANIEL
Attorney General

DM/JHD:cyh

‘4 For a more detailed discussion of the factors that bear on assigning the cost of utility-pole relocation costs, including such issues as the existence of easements and the dictates of public necessity, see Southwestern Bell Telephone Co., supra n. 3. See also Op. Atv’y Gen. No. 99-181 (discussing this issue at length within the context of a county's extending and widening roads along which utility poles have been located).