Ben Rush and Joanne Rush v. Lynne Davis Family Limited Partnership And Adannac Family Properties, LLC

Cite as 2022 Ark. App. 441
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-21-446

Opinion Delivered November 2, 2022
BEN RUSH AND JOANNE RUSH
APPELLANTS APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CV-19-466]

LYNNE DAVIS FAMILY LIMITED HONORABLE ROBERT H. WYATT,
PARTNERSHIP; AND ADANNAC JR., JUDGE
FAMILY PROPERTIES, LLC
APPELLEES AFFIRMED

LARRY D. VAUGHT, Judge

Joanne and Ben Rush (the Rushes) appeal the Jefferson County Circuit Court’s order

granting summary judgment in favor of the appellees, Lynne Davis Family Limited Partnership

and Adannac Family Properties, LLC (hereinafter referred to collectively as “the McNeill

family” or “the McNeills”).1 The order also quieted title to a disputed forty-seven-acre parcel

of land located on the McNeill family’s farm and dismissed the Rushes’ counterclaims for

promissory estoppel and for the establishment of an easement. We affirm.

1Petitioner Lynne Davis Family Limited Partnership is an Arkansas limited partnership
with its principal place of business in Little Rock, Arkansas. The members of the Davis FLP
are Lynne Davis and her children, William Davis and Isabelle Thrash. Petitioner Adannac
Family Properties, LLC, is a Mississippi limited liability company with its principal place of
business in Madison, Mississippi. The members of AFP, LLC, are Rachel Cannada and her
children, Cecilia Rutledge and Christy Burrow. The appellees’ predecessors in interest are the
McNeill Family Limited Partnership, Isabelle Earhart McNeill, and William McNeill.
Together, these individuals and entities have owned and operated the McNeill family farm,
which comprises approximately 1,500 acres in Jefferson County, Arkansas, since at least the
1940s. Therefore, we collectively refer to the appellees and their predecessors in interest as
“the McNeill family.”
The disputed tract of land is located in Jefferson County, Arkansas, and is bordered on

all sides by a lake and by property owned by the McNeill family. The McNeill family contends

that the disputed tract is part of a fifteen-hundred-acre farm that they have continuously

owned and operated for almost eighty years. The McNeill family submitted evidence that,

since the 1940s, they have behaved as if they own the now-disputed forty-seven-acre tract of

land: cutting and clearing the timber, raising cattle on it, fencing it, leasing it to others for

farming and hunting, commercially harvesting pecans from its trees, maintaining roads to it,

posting signs on it to deter trespassers, hunting on it, and paying property taxes on all the

contiguous land. Dating back to 1981, the McNeill family enrolled portions of the disputed

tract of land in the United States Department of Agriculture (USDA) and Agricultural

Stabilization and Conservation Service (ASCS) farm programs. Most recently, the McNeill

Family placed portions of the family farm, including the disputed tract of land, in the Federal

Conservation Reserve Program (CRP) in 2015 and 2017, and they planted trees and performed

other conservation practices required by the program on the disputed property.

The McNeill family presented evidence that it holds a 1974 deed that conveyed “All

that part of Section 29, which lies North of Arkansas River” and that the contested forty-seven

acres lies squarely within that portion of section 29.

In 1975, Buckner Realty and Insurance Company, Inc. (owned by Mr. James Buckner),

bought the forty-seven-acre tract of land—along with four other lots—for $106.38 at a tax

sale. The McNeill family presented evidence that it was unaware of this sale at the time and

that, since the tax sale, Buckner has had no access to the land, and no one has ever seen him

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on the property. The McNeill family notes that the Rushes did not present any evidence from

Buckner to the contrary.2

The McNeill family presented evidence that, in 1982, they put Buckner on notice that

they were making a claim to the property that was open and adverse to Buckner’s claim. In a

letter dated October 28, 1982, Buckner wrote the following:

Buckner Realty and Insurance Company, Inc., holds title to all of the Northeast ¼
South of the River in Section 29, T3S, R10W in Jefferson County. . . . I am requesting
your approval to use the existing farm lanes on your adjoining property as an access to
our property.

Dr. Ric Cannada (a son-in-law member of the McNeill family) responded to Buckner

on behalf of the family and informed him that the family was not willing to grant Buckner’s

request to use the existing farm lanes on the McNeill property as an access to the forty-seven-

acre tract. Further, Cannada asserted to Buckner that the McNeill family’s property includes

“all of the flooded timber at the west or north-west end of the lake” and that the McNeill

family “post[s] the property anew each year.” Buckner responded, stating, “I am afraid that

we have a serious title problem concerning the disputed property . . . .” Buckner further noted

that “[a]ccording to aerial photographs, the flooded timber at the west end of the lake is within

the aforementioned legal description.”

The McNeills presented affidavits stating that, despite being made aware of the “serious

title problem,” Buckner took no additional steps to assert his ownership of the property

against the McNeills following their 1982 correspondences. Buckner did, however, continue

2At the hearing, Ben conceded that Buckner had not been on the disputed property in
forty years and that Ben understood that to be the case when he executed the contract to
purchase the property.

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to pay taxes on the property and granted a flowage easement to the United States government

in 2003.

The McNeills farmed the land, posted “no trespassing” markers annually, hunted on

the land, and—from 1992 until 2017—leased the forty-seven-acre tract to third parties for

farming operations. During this time the McNeill family continued to commercially harvest

pecans on portions of the disputed property annually.

The evidence presented to the circuit court showed that, in 2019, Ben was perusing the

Jefferson County Tax Assessor’s records and saw that Buckner Realty and Insurance

Company, Inc., owned the tract of land. He was interested in purchasing the land, so he

contacted Buckner about buying the property. Buckner informed him that the tract of land

was landlocked and that Buckner had no way to access it. Ben testified that he assumed that

Buckner had not been on the property since purchasing it and that it “certainly has not been

open to Mr. Buckner in the fact that he [was] not allow[ed] access to the property.”

Ben contracted with Buckner to purchase the property on January 4, 2019, despite

having never seen it. Buckner told Ben that adverse possession would have to be an exception

to his title warranty. The real estate contract set the closing date for April 19, 2019. The title-

insurance company also excepted any claims for adverse possession.

During the week of January 7, 2019, Ben tried to reach John Davis (son-in-law member

of the McNeill family). At Davis’s request, Cannada returned Ben’s call on January 16, 2019.

Cannada agreed to meet with the Rushes. On January 19, 2019, the Rushes and Cannada met

at the McNeill family farm, got into Cannada’s truck, and drove across the McNeill’s pecan

orchard to a place where they thought the corners to the disputed forty-seven-acre tract might

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be located in the middle of a large field that, for decades, the McNeills had used for grazing

and then farming.

The McNeills assert that Ben never asked about or discussed the issue of adverse

possession with Cannada, John Davis, or any other member of the McNeill family. However,

Ben testified that when he was in Cannada’s truck driving across the property, Cannada blurted

out that he “had no plans to pursue adverse possession.” Ben did not respond to the statement,

and Joanne Rush, who was sitting in the backseat, did not hear the statement. Ben also did not

write the statement down or make any attempt to memorialize it at the time. Ben did not

confirm the statement with Davis, who, along with Cannada, owned contiguous parcels of

property or seek any similar assurances from other members of the McNeill family. Cannada

denies having made the statement.

On January 22, 2019, Cannada contacted the Rushes and pleaded with them not to go

forward with the purchase of the forty-seven-acre tract of land from Buckner. He asked them

to allow the McNeill family to purchase the land instead. Cannada explained that “the land is

surrounded by our ancestral family farm,” and the “farm has been the heart of our family and

our family heritage.” Cannada told Ben “the idea of granting an access across our family farm

to a land locked place in the middle of our farm is very troubling and difficult. If the law forces

us to do it, we will of course comply.”

After being told that the McNeill family would not voluntarily grant him access to the

land and would only grant him an easement if they “were required to do so” and “if the law

force[d] [the family] to do it,” Ben sent an email to Cannada on January 27, 2019, in which he

stated that the Rushes would “be back in touch once a decision has been made.”

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The Rushes then took steps to move up the closing date on the property to January 30,

2019. They purchased the property with adverse possession being specifically exempted from

their warranty deed and title insurance. After closing on the property, Ben contacted Cannada

and told him that the Rushes went ahead and purchased the property because they had given

Buckner their word that they would do so, that they had “no definitive answer yet” regarding

their aim to get an easement and use the land, and that the McNeill family should not “panic

yet.” In response, Cannada offered to pay the Rushes more than they paid for the land or to

swap it for an equal portion of land on the periphery of the McNeill family farm. The Rushes

were not willing to swap the forty-seven-acre tract of land for a tract of equal size. They wanted

more than forty-seven acres in any possible swap or substantially more money than the

$50,000 they had just paid Buckner.

After acquiring title from Buckner, the Rushes requested that the Jefferson County Tax

Assessor recognize that the parcel of land included the original forty-seven acres and also

additional accreted land. The additional acreage was recognized as accreted property by the

Jefferson County Tax Assessor, and the record on appeal contains a “Jefferson County Rural

Property Record Card,” which contains a verified map, sectional plat, and record card from

the Jefferson County Tax Assessor. This record card states, “4/17/2019 CGH ADDED

ACCRETIONS TO ASSESSMENT AT REQUEST OF BEN RUSH.” Further, the legal

description provided by the assessor’s office is “ALL NE ¼ S OF RIVER & ACCRETIONS

88.026 ACRES.”

After the Rushes had purchased the land from Buckner, the McNeill family filed suit

in the Jefferson County Circuit Court seeking to quiet title on the basis of adverse possession

of the following land:

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All of the Northeast Quarter (NE1/4) South of the River in Section 29, Township 3
South, Range 10 West, and accretions, being 88.026 acres[.]

The legal description used by McNeill family in their petition matches the legal description of

the land on file with the Jefferson County Tax Assessor, which was based on the updated

description provided by Ben. Specifically, the McNeills sought to quiet title to the exact tract

of land that Buckner purchased in the tax sale and that the Rushes purchased from Buckner,

plus the additional acreage that Ben Rush represented to the Jefferson County Tax Assessor

had been created by accretion.

The Rushes counterclaimed and sought to quiet title to the property they purchased

from Buckner, specifically:

All of the Northeast Quarter (NE1/4) South of the River located in Section 29,
Township 3 South, Range 10 West of the 5th P.M., Jefferson County, Arkansas.

This description does not contain the additional accreted land. The Rushes also alleged

promissory estoppel, claiming that they bought the property in reliance on Cannada’s

statement that he did not intend to pursue a claim for adverse possession. The Rushes further

asked the court to grant them an easement so that they could access the property.

The McNeill family moved for summary judgment and attached numerous exhibits,

including seventeen sworn affidavits in support of their claim for adverse possession. The

Rushes filed a response, to which they also attached several exhibits. The court held a

summary-judgment hearing on June 11, 2021.

On June 24, 2021, the Jefferson County Circuit Court entered an order granting the

McNeill family’s motion for summary judgment and quieting title to the disputed forty-seven-

acre tract of land in favor of the McNeill family. Specifically, the circuit court found that the

McNeill family met the common-law requirements for adverse possession from 1982 through

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1995 and that they met the statutory requirements for adverse possession, pursuant to

Arkansas Code Annotated section 18-11-106 (Repl. 2015), from 1995 through January 2019.

The court also found that the McNeill family was entitled to summary judgment on the

Rushes’ counterclaim for promissory estoppel. The court found that the Rushes’ claim for an

easement was moot since the property now belonged to the McNeill family. The description

of the property to which the court quieted title included the accreted land that Ben had caused

to be added to the assessor’s legal description. From the court’s grant of summary judgment,

the Rushes now appeal.

“Summary judgment should only be granted when it is clear that there are no genuine

issues of material fact to be litigated, and the moving party is entitled to judgment as a matter

of law.” City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 112, 60 S.W.3d 443, 446

(2001); Ark. R. Civ. P. 56(c)(2). On appeal, we must determine “if summary judgment was

appropriate based on whether the evidentiary items presented by the moving party in support

of the motion leave a material fact unanswered.” Clark v. Progressive Ins. Co., 64 Ark. App. 313,

317–18, 984 S.W.2d 54, 57 (1998). We review such evidence “in the light most favorable to

the party against whom the motion was filed, resolving all doubts and inferences against the

moving party.” Id. at 317–18, 984 S.W.2d at 57. In deciding whether to grant summary

judgment, it is inappropriate for a circuit court to weigh the evidence, determine credibility of

witnesses, or to resolve conflicting testimony. Turner v. Nw. Ark Neurosurgery Clinic, P.A., 84

Ark. App. 93, 105, 133 S.W.3d 417, 424 (2003).

Although we view evidence in the light most favorable to the party against whom the

motion was filed, “[i]f the party moving for summary judgment makes a prima facie showing

that no issues of fact exist, and the non-moving party fails to show that such issues do exist,

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then the court must affirm the trial court’s grant of a summary judgment.” Golden Tee, Inc. v.

Venture Golf Schs., Inc., 333 Ark. 253, 259, 969 S.W.2d 625, 628 (1998). To show that issues of

fact exist, the nonmoving “party must meet proof with proof and demonstrate the existence

of a material issue of fact.” Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712, 715 (1998).

Further, summary judgment is appropriate in cases of adverse possession where the facts are

undisputed, and the nonmoving party fails to submit competing affidavits. Dye v. Anderson Tully

Co., 2011 Ark. App. 503, at 7, 385 S.W.3d 342, 348.

The Rushes argue that the circuit court erred in granting summary judgment on the

McNeill’s adverse-possession claim because there are disputed issues of fact that should be

determined by a jury. Arkansas adverse-possession law is a combination of common law and

statute. To succeed on a claim for adverse possession, a petitioner must show by a

preponderance of the evidence that he or she possessed the disputed property continuously

for seven years and that the petitioner’s possession was actual, open, continuous, hostile,

exclusive, and accompanied by an intent to hold adversely and in derogation of the true owner.

In re Estate of Slaughter, 2021 Ark. 199, at 7, 632 S.W.3d 746, 750. Proof of the claimant’s acts

of ownership are of such a nature as one would exercise over his property and would not

exercise over the land of another is ordinarily sufficient proof of adverse possession. Horton v.

Taylor, 2012 Ark. App. 469, at 9, 422 S.W.3d 202, 209. In 1995, the Arkansas General Assembly

added as a requirement for proof of adverse possession an element that the claimant must

prove color of title and payment of taxes on the contiguous property for seven years. Ark.

Code Ann. § 18-11-106 (Repl. 2015). However, if the claimant’s rights to the disputed property

“vested before 1995, he need not comply with the 1995 statutory change.” Horton, 2012 Ark.

App. 469, at 9, 422 S.W.3d at 210.

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The requirements of adverse possession are even more stringent for a trespasser

without color of title. The trespasser must show actual possession to the extent of the claimed

boundaries. Fulkerson v. Van Buren, 60 Ark. App. 257, 260–61, 961 S.W.2d 780, 782 (1998).

“[T]here is every presumption that possession of land is in subordination to the holder of the

legal title to the land. The intention to hold adversely must be clear, distinct, and unequivocal.”

Id., 961 S.W.2d at 782.

Here, the court specifically found that the McNeill family met all the common-law

requirements for adverse possession from 1982 through 1995 and all the statutory

requirements from 1995 through 2019. Evaluating the court’s grant of summary judgment on

the McNeill’s adverse-possession claim requires us to first determine whether the McNeills

were acting with color of title when they occupied the property. The Rushes argue that the

McNeills were trespassers not acting with color of title. As trespassers, the McNeill family

would have to prove actual possession of the property to the extent of the claimed boundaries.

Fulkerson, 60 Ark. App. at 260–61, 961 S.W.2d at 782. The Arkansas Supreme Court has

adopted the following definition of color of title:

Color of title is not, in law, title at all. It is a void paper, having the semblance of a
muniment of title, to which, for certain purposes, the law attributes certain qualities of
title. Its chief office or purpose is to define the limits of the claim under it. Nevertheless,
it must purport to pass title. In form, it must be a deed, a will, or some other paper or
instrument by which title usually and ordinarily passes.

Bailey v. Jarvis, 212 Ark. 675, 680, 208 S.W.2d 13, 15 (1948).

In the present case, the Rushes failed to obtain a ruling on their argument that the

McNeill family acted as trespassers without color of title. The Rushes raised this issue in their

response to the McNeills’ motion for summary judgment, but the court’s summary-judgment

order does not state whether the McNeills were acting with color of title.

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We note that the McNeill family was entitled to summary judgment whether or not

they were found to have been acting with color of title. In support of their contention that

they had color of title, the McNeills presented evidence that they held a 1974 deed describing

land in section 29 that appears to include the forty-seven-acre tract. Moreover, the McNeills

presented evidence that they thought the disputed piece of property was part of their family

farm and treated it as such for decades. When Buckner asserted a claim to the land in 1982,

the McNeill family responded that it belonged to them and was a part of their family farm.

They also presented evidence that they used the land in a way that indicated their belief that

they owned it: They posted the property to deter trespassers, leased it to others, removed

timber crops from it, and enrolled it in government programs.

Alternatively, even assuming that the McNeill family was not acting with color of title

and should be deemed trespassers, as the Rushes argue, the McNeill family presented

uncontested evidence demonstrating continuous, open, and adverse possession of the

property to the extent of the tract’s claimed boundaries, and the Rushes failed to provide

evidence to the contrary. Specifically, the McNeill family presented significant evidence that

they fenced the land, farmed it, grazed it, hunted on it, used it to grow and gather pecans, and

posted it against trespassers. The Rushes failed to meet proof with proof by presenting any

evidence contesting the truth or accuracy of the McNeill family’s assertions.

The Rushes also argue that genuine disputes of material fact exist regarding the

description and location of the property in question. Specifically, they contend that there is a

controverted factual issue as to whether the 1982 letters between Buckner and the McNeill

family, along with the subsequent actions of both parties, were sufficient to put Buckner on

notice that the McNeills were possessing the property openly and adversely because they note

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slight differences in the McNeills’ and Buckner’s descriptions of the property in the letters

exchanged in 1982. Both parties described the property as being west of the lake, but the

McNeills described it as north or northwest of the lake, while the Rushes contend that the

parcel of land at issue in this case is actually southwest of the lake. The Rushes also argue that

the legal description of the property used by both parties throughout the case does not

accurately reflect the parcel of land about which both parties provided testimony and evidence.

The Rushes contend that these discrepancies amount to a disputed issue of material fact that

should have barred summary judgment.

The Rushes are incorrect. The circuit court quieted title to a tract of land that, except

for the addition of accreted property, matches the legal description of the property Buckner

purchased at the tax sale, about which he corresponded with the McNeills in 1982 and which

he then sold to the Rushes. The description of the property at issue in the present case also

matches the description that Ben caused to be placed in the Jefferson County Tax Assessor’s

records when he requested that the assessor’s office update the description to include accreted

property. Notably, while the parties have not employed a land surveyor to locate the exact

corners and boundaries of the property at issue, they do not dispute that the land is located

on the McNeill family farm surrounded by other property owned and farmed by the McNeills,

meaning that the testimony and evidence that the McNeills provided about their use of the

land for the past forty years is not contingent on the specific legal description of the property.

The Rushes further contend that the 1982 letters were insufficient to put Buckner on

notice of the McNeills’ adverse possession because the McNeills described the property in

their letters as being north or northwest of the lake, which the Rushes contend differs from

the property’s actual location southwest of the lake. This argument ignores the fact that

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Buckner clearly understood that the McNeills were asserting ownership of the property he

purchased at the tax sale. Buckner stated as much in his letter when he said, “I am afraid that

we have a serious title problem concerning the disputed property . . . .”

The Rushes also claim that there are disputed issues of material fact as to the McNeill

family’s actual use of the property over the past forty years. On this point, the Rushes concede

that the McNeills presented numerous affidavits supporting their open, continuous, and

adverse use of the property since at least 1982. However, they claim that the McNeills’

affidavits were self-serving by a party with an interest in the outcome of the litigation or were

obtained from friendly neighbors, were vague and conclusory, and should not be given

significant weight. In response to the McNeills’ assertions that they denied Buckner access to

the property, the Rushes claim that the McNeills do not know and cannot know that Buckner

never accessed the property. The Rushes speculate that Buckner could have accessed it by

water and might have been one of the trespassers that the McNeills admitted to having seen

on the property from time to time. By calling into question the accuracy of the McNeills’

assertion that they barred Buckner from the property, the Rushes contend that there remains

a disputed issue of material fact as to whether the McNeills openly and adversely possessed

the property against Buckner’s claim of ownership. This argument is purely hypothetical since

the Rushes failed to present the court with any evidence demonstrating that Buckner accessed

the property, while the McNeills presented evidence that he did not.

We find no error in the circuit court’s determination that the McNeill family was

entitled to summary judgment on their claim for adverse possession. In their appellate

arguments, the Rushes fail to differentiate between the McNeill’s common-law adverse

possession between 1982 and 1995 and their statutory adverse possession from 1995 until

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2019. Instead, the Rushes are attempting to attack the McNeills’ evidence of both common-

law and statutory adverse possession by contesting the proof, calling the McNeills’ affidavits

self-serving and pointing out inconsequential discrepancies in the McNeills’ description of the

property. This is insufficient to defeat summary judgment. Once the moving party has

established a prima facie entitlement to summary judgment, the opposing party must meet

proof with proof and demonstrate the existence of a material issue of fact. Sellers v. Felton, 2021

Ark. App. 247, at 3, 626 S.W.3d 121, 123. Here, the McNeills presented sufficient evidence to

establish a prima facie claim for adverse possession, and the Rushes failed to meet proof with

proof establishing a contested issue of material fact barring summary judgment. Therefore, we

affirm the grant of summary judgment.

The Rushes also argue that the circuit court erred in granting summary judgment to the

McNeills on the Rushes’ promissory-estoppel claim. The Rushes alleged that the McNeills

should be barred from obtaining title to the property through adverse possession because

Cannada allegedly told Ben that Cannada had no intention of pursuing a claim for adverse

possession. The Rushes assert that granting summary judgment to the McNeills on both the

adverse-possession claim and the Rushes’ counterclaim for promissory estoppel was reversible

error because the promissory-estoppel counterclaim hinges entirely on a disputed issue of

material fact—whether Cannada made the statement. We find no reversible error and affirm.

Under Arkansas law, a plaintiff may establish promissory estoppel upon the showing of (1)

the making of a promise; (2) the intent that the promise be relied upon; (3) actual reliance

upon the promise; and (4) injustice resulting from a refusal to enforce the promise. 1 Howard

W. Brill & Christian H. Brill, Arkansas Law of Damages § 17:14 (6th ed. 2014) (citing Curtis

Lumber Co., Inc. v. La. Pac. Corp., 618 F.3d 762, 780 (8th Cir. 2010)).

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Even if we assume that Cannada made the disputed statement about not intending to

pursue a claim for adverse possession, the Rushes have not established a prima facie claim for

promissory estoppel because they have not demonstrated that they relied on Cannada’s

statement in their decision to buy the property. Ben testified in his deposition that he would

still have purchased the property if Cannada had not stated that he did not intend to pursue

adverse possession. Specifically, he was asked, “And so had Mr. Cannada not assured you or

not said they had no plans of pursuing an adverse possession claim, you would not have

bought this property?” and he responded, “Well, no, that’s not necessarily true at all. The

subject had not ever come up and I still had access—as long as I had access to the property, I

would have probably most likely have bought it.” Additionally, following Cannada’s alleged

statement, the McNeills expressed their clear intent to continue to claim and use the property.

Cannada pleaded with the Rushes not to buy the property, expressed to them how important

it was to the McNeills that the property remain a part of the family farm, and stated that they

would give the Rushes access to the property only if forced to by the courts. Moreover, the

Rushes were aware that they were purchasing the property with clear and specific exemptions

from their warranty deed and title insurance for adverse possession. Finally, despite the fact

that Cannada was only one member of the McNeill family to own property surrounding the

disputed tract of land, the Rushes did not attempt to secure such a promise from other family

members, leaving them open to other adverse-possession claims. We therefore affirm the

circuit court’s grant of summary judgment in favor of the McNeill family on the Rushes’ claim

for promissory estoppel.

Next the Rushes argue that the court erred by quieting title to the accreted land in

addition to the original forty-seven acres that Buckner purchased at the tax sale and sold to

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the Rushes. Accretion is the “gradual deposit and addition of soil along the bank of a

waterbody caused by the gradual shift of the waterbody away from the accreting bank.” Swaim

v. Stephens Prod. Co., 359 Ark. 190, 196, 196 S.W.3d 5, 8 (2004). It is well settled that when

accretion land is formed by a gradual and imperceptible alteration in the land, the ownership

of the land vests in the riparian owner “from whose shore or bank the water receded.” Id. The

McNeill family presented testimony and evidence of the accretion, including the Jefferson

County Tax Assessor’s revised property description reflecting the addition of accreted land to

the original tract. We note that, while the Rushes now contest the addition of the accreted

land, Ben caused the assessor’s description of the property to be modified to reflect the added

acreage, specifically noting that it was due to accretion. The Rushes now argue that the

additional acreage “could be explained, at least in part, by avulsion as much as by accretion.”

Such an argument is insufficient to rebut the McNeill family’s prima facie case that they are

entitled to ownership of the additional land due to accretion. As discussed above, the Rushes

had an obligation to meet proof with proof in order to survive summary judgment, and they

failed to do so.

Finally, the circuit court properly found that the Rushes’ request for an easement was

moot once the circuit court quieted title to the disputed land in favor of the McNeill family.

The Rushes asserted that Cannada promised to give them an easement to access the disputed

tract of land, and Cannada and the McNeill family dispute that such a promise was ever made.

The Rushes present this as another material issue of disputed fact that should have barred

summary judgment. They also argue that, in ruling against them on this issue, the court made

a credibility determination, which is improper in deciding a motion for summary judgment.

On appeal, both parties present arguments regarding the evidence supporting their assertions

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regarding whether Cannada did or did not promise the Rushes an easement. However, all of

these arguments miss the point: the circuit court found the easement issue moot once it

quieted title in favor of the McNeill family. The court, therefore, did not rule on whether

Cannada promised the Rushes an easement. It simply determined that the Rushes have no

need for an easement to reach a landlocked piece of property that they do not own. We hold

that the circuit court did not err in finding that the easement issue is now moot.

Affirmed.

VIRDEN and GRUBER, JJ., agree.

PPGMR Law, PLLC, by: R. Scott Morgan and M. Christine Dillard, for appellants.

Turner Law Firm, by: Kaleb M. Jones; and Thrash Law Firm, P.A., by: Thomas P. Thrash and

Will T. Crowder, for appellees.

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