dissenting.
I must respectfully dissent. The appel-lee and defendant below, C & L Electric, initially requested that this case be heard by a jury. Thereafter, C & L filed a motion for summary judgment alleging that there were no material facts to be decided by a jury sitting as fact-finder, and its motion was granted by the trial court.
On appeal, we review the appropriateness of a summary judgment based on whether the evidentiary items presented by the moving party leave a material fact unanswered. Wilcox v. Wooley, 2015 Ark. App. 56, 454 S.W.3d 792. We view the 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. The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007).
The crux of Bingham’s lawsuit is that C & L had been using his property for many years with permission and that its use did not become adverse until C & L removed his trees. Mere permissive use of an easement cannot ripen into an adverse claim without clear action, which places the owner on notice. Reynolds v. GFM, LLC, 2013 Ark. App. 484, 429 S.W.3d 336. Some circumstance or act in addition to, or in connection with, the use, which indicates that the use was not merely permissive, is required to establish a right by prescription. Id. In | inother words, absent some drastic event, one cannot adversely possess that which he holds by permission.
The determination of whether a use is adverse or permissive is a factual question. Horton v. Taylor, 2012 Ark. App. 469, 422 S.W.3d 202. A factual issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party, is entitled to judgment as a matter of law. Wilcox, supra. It was C & L’s burden to prove by a preponderance of the evidence that its use was adverse and not permissive. See Horton, supra., None of the affidavits or evidence submitted by C & L bore on the fact in dispute, i.e., whether C & L’s longstanding use of Bingham’s property was adverse, as opposed to permissive. As such, a material issue remained to be decided by a jury. A jury could conclude that C & L’s entry upon Bingham’s land from time to time to maintain its electrical distribution line was not an action sufficient to put Bingham on notice that its use had graduated from permissive to adverse. After all, C & L’s use benefited Bingham and the entire community. A jury could further conclude that C & L’s use of Bing-ham’s land did not become adverse until C & L took the drastic measure of removing Bingham’s trees.
I must hasten to add that, had this case been tried to the court as the fact-finder with only the evidence presented in the summary-judgment proceedings, I might well have agreed with the majority and the outcome they have ratified. But it wasn’t. The majority opinion should serve as a warning to any property owner considering allowing another, especially a utility company, to have access and use of his property.