dissenting. I dissent from this decision because I believe that the chancellor’s findings that the appellees acquired a prescriptive easement of a driveway and tide by adverse possession to a six-foot strip of adjacent property were clearly against the preponderance of the evidence and, therefore, erroneous. The chancellor made those findings despite uncontra-dicted proof that the area was originally owned by appellants’ predecessors in title who had given appellees’ predecessor in title permission to use the driveway and the area adjacent to it. The permissive use never ripened into adverse use.
The evidence was that a couple named Harris owned a thirteen-acre parcel of land that included the house in which they lived in the southern part of the parcel. The Harrises decided to build another house for themselves in the northern section of the tract, but while they still lived in their old house which they were renting from its purchaser (the Yorks) they arranged for a driveway to be cut that would serve their new house. The Harrises sold their house and two acres of land south of the driveway to a couple named York, and consented to the Yorks’ use of the driveway after the sale even though the driveway was not property included in the sale. In fact, the property line for the two acres that the Yorks bought was 6 feet south of the driveway. A fence ran almost 10 feet north of the driveway. From 1979 until 1986, the Yorks lived in the house south of the driveway and used the driveway with the Harrises’ permission.
Following Mr. York’s death in 1984, Mrs. York sold the two acres to appellees (Ginger) on July 1, 1986. The Gingers received a survey that clearly showed the boundary to their property as 10 feet south of the private driveway that the Harrises constructed, and that the driveway was fully within the Harrises’ property. However, the Gingers did not examine their survey until 1989, after a question arose between Mr. Ginger and Mr. Harris about ownership of the driveway and the property adjacent to it.
In 1991 the Harrises’ heirs sold the north eleven-acre tract to appellants (Fieldses). The Fieldses received a survey that accurately depicted the boundary line between their property and that of the Gingers and depicted the accurate location of the private driveway within their property. When the Fieldses learned that the Gingers were not only using the private drive but apparently claiming the property on either side of it, they notified the Gingers by letter from their attorney stating their claim to the property described in their deed from the Harris heirs, and stating that any use of the driveway and property on either side of it by the Gingers was permissive as it had been for nearly 15 years. The Gingers then filed suit to quiet tide in the property south of the fence (north of the driveway) by adverse possession, or declaring themselves owners of a permanent easement covering that property and enjoining the Fieldses from interfering with their use of it. The Gingers later amended their complaint to assert ownership under the doctrine of boundary by acquiescence. The Fieldses filed a counterclaim to quiet tide that the Gingers denied.
The chancellor found that there was insufficient proof: (1) that the fence north of the private driveway became the boundary line by acquiescence; (2) that there was an oral agreement that the fence would constitute the boundary line; (3) that the Gingers acquired an easement by necessity along the driveway; or (4) that they had acquired the tract between the northern edge of the driveway and the fence by adverse possession. However, the chancellor found that the Gingers acquired an easement in the driveway by prescription and title to the six-foot strip immediately south of the driveway by adverse possession. The chancellor also quieted title in the Fieldses in the property north of the southern edge of the driveway, subject to the nonexclusive easement to the driveway in favor of the Gingers. This finding was reached by tacking the Gingers’ use of the area between the northern edge of their property and the southern edge of the driveway with that of their predecessors, the Yorks.
The elements for a prescriptive easement are essentially the same as for adverse possession except that exclusivity is not required. A claim for prescriptive easement, however, requires something more. The claimant to a prescriptive easement must prove some circumstance or act in addition to, or in connection with, the use which indicates that the use was not merely permissive because mere permissive use of an easement cannot ripen into an adverse claim without clear action placing the owner on notice. Manitowoc Remanufacturing v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991)(emphasis added). A line of cases running from Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954) to White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992) establishes that in order to establish a prescriptive easement, the true owner must either know or be presumed to know of the adverse character of the claimant’s possession based on the facts and circumstances of the use. An alternative line of cases holds that the claimant must take affirmative steps to put the owner on notice of an adverse claim to support a prescriptive easement. See, e.g., Manitowoc, supra; Burdess v. Arkansas Power & Light, 268 Ark. 901, 597 S.W.2d 828 (1980); Wisdom v. Thomas, 253 Ark. 32, 484 S.W.2d 348 (1972); Harper v. Hannibal, 241 Ark. 508, 408 S.W.2d 591 (1966); St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S.W.2d 659 (1950). Numerous other jurisdictions follow this principle. See, e.g., Eileen B. White & Associates. v. Gunnells, 263 Ga. 360, 434 S.E.2d 477 (1993); Carr v. Turner, 575 So.2d 1066 (Ala. 1991); Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112 (Miss. 1987); Lorang v. Hunt, 107 Idaho 802, 693 P.2d 448 (1984); Anson v. Tietze, 354 Mo. 552, 190 S.W.2d 193 (1945); Moore v. Day, 199 App. Div 76, 191 N.Y.S. 731 (1922), aff’d. 235 N.Y. 554, 139 N.E.732 (1923); see generally 25 Am. Jur. 2d Easements and Licenses §§ 65-67 (1996).
The majority ignores this second line of cases, citing instead cases that base their holdings on alternative reasonings. See, e.g., McGill, supra; Fullenwider, supra. In virtually every case cited by the majority, the original owner was attempting to block or somehow obstruct the easement in question. These cases also rely heavily on the fact that the easements therein were used by great numbers of people, usually the general public. See, e.g., McGill, supra; Fullenwider, supra; Zunamon, supra. Here, by contrast, the easement stems from an express oral agreement between two neighbors. Moreover, the Fieldses are merely seeking a resolution of the status of the easement. The record reveals no intent to block the Gingers from continuing to use the driveway. To the contrary, the record shows that the Fieldses wrote the Gingers and declared that use of the driveway was acceptable but by permission.
It is easy to reconcile these two lines of cases given the facts of the instant case. The cases relied upon by the majority that hold an owner must know or be presumed to know the adverse character of the claimant’s possession are simply inapposite here because the use by the Ginger’s and their predecessors in tide was never adverse. Additionally, Mrs. Harris’ statement that Mr. Harris was aware of a potential prescriptive easement claim as to the driveway cannot be imputed as some form of concession. Adverse possession and prescriptive easements are fact-intensive legal concepts often misunderstood by lawyers and laypersons alike. The law of both prescriptive easements and adverse possession looks to the use of the challenger, not the perceived effect of that use by the owner. In particular, the hostile character of possession is determined by the occupant’s own views, actions and intentions and not those of his adversary. Potlatch Corp. v. Hannegan, 266 Ark. 847, 586 S.W.2d 256 (1979). When the general public makes use of an easement (see the cases cited by the majority infra) or the owner intentionally places a barricade across the easement, the owner is hard pressed to deny knowledge or the presumption of knowledge of adverse use. Neither of these relevant conditions existed in this case, nor did the parties contend they existed.
In Harper v. Hannibal, supra, the supreme court cited with approval a Washington case stating that no prescriptive right is created unless a “distinct and positive assertion ... of a right hostile to the owner [has been asserted]” and the claimant has held possession thereafter for the statutory seven-year period (emphasis added). 241 Ark. at 513, 408 S.W.2d at 593. In fact, a stricter standard applies before a permissive easement will be held converted into a prescriptive easement. Where entry upon the owner’s land is permissive, the statute of limitations for a prescriptive easement will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner. St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S.W.2d 659 (1950)(emphasis added). The challenger has the burden of proving a prescriptive easement. Burdess v. Arkansas Power & Light, 268 Ark. 901, 597 S.W.2d 828 (1980).
The Gingers can point to no overt activity nor any distinct and positive assertion that clearly put the Fieldses or their predecessors on notice concerning their claim of right to a hostile use of the driveway, or the six-foot strip of land south of it that the chancellor found that they have acquired by adverse possession. The only thing that the Gingers did concerning the driveway was to continue to use it the same way that their predecessors (the Yorks) had used it. The Yorks were clearly on notice that the driveway and adjacent property six feet south of it belonged to the Harrises and that they were only permitted to use it. The Harrises and the Yorks mowed the grass south of the driveway. The Harrises planted a row of trees south of the driveway, and Mrs. Harris watered and cared for the trees on a regular basis until she left in 1986. The Gingers brought their suit less than seven years afterwards. Although Mr. Ginger testified to planting Bradford pear trees in 1987, he admitted that his trees were planted along the true property line. That conduct does not constitute clear notice to the true owner of a hostile use consistent with Arkansas law.
The majority cites Zunamon for the proposition that one claiming a prescriptive easement need not “communicate” their intent to use the easement adversely. This correcdy states the law but misses the point. It not the communication that matters; rather, as Zunamon points out, it is the “length of time” and the “circumstances under which the [easement] . . . was used” that establishes adverse use. 271 Ark. at 791, 610 S.W.2d at 288. It is precisely the circumstances surrounding the Gingers’ and Yorks’ use that distinguish this case. It did not begin, nor did it ever become, adverse.
Counsel for the Gingers was asked at oral argument what conduct by the Gingers or their predecessors amounted to a clear assertion of a hostile claim of right to the disputed area (either the driveway as to the prescriptive easement or the six-foot area south of it as to the property acquired by adverse possession). Counsel was unable to identify any point in time when anything was done that amounted to a hostile claim of right to the property, let alone any time that the required hostile claim was made known or presumed known to the true owners.
The adverse possession claim also fails because the Gingers failed to show the requisite intent on their part or the Yorks’ part to hold the six-foot strip adversely. In a claim of adverse possession, intention is a controlling factor, and intention to hold must be clear, distinct and unequivocal. Dillaha v. Temple, 267 Ark. 793, 590 S.W.2d 331 (1979). Mrs. York’s testimony showed equivocal intent. She admitted that she did not know where the true boundary was and only “figured” the fence was the line. Mr. Ginger admitted that he did not know where the property line was until 1989 when the first possibility of a boundary line disagreement arose with Mr. Harris. Only then did Ginger look closely at his survey. Any intent on the Gingers’ part to hold adversely was formed in or after 1989, not 1979 as the Gingers claim by virtue of tacking the Yorks’ purported adverse use to their own use.
This is not a pase of deferring to the findings made by the chancellor. The clear law of Arkansas for decades has required proof of an adverse claim of ownership or right of possession before a claim based on prescriptive easement or adverse possession can be upheld. The appellees concede that their use of the driveway and the property south of it was permissive, and that it was consistent with the permissive use made of that area by their predecessors. Appellees should not acquire title by adverse possession or a prescriptive easement based upon permissive use.
Finally, the policy effects of this case are deeply troubling. Now, an obliging landowner who wants to cordially grant a neighbor some right to use the owner’s land will be disinclined towards such a neighborly gesture. If merely granting permissive use in one’s land starts the clock for adverse possession or a prescriptive easement without proof of adverse use by the grantee, then adjoining landowners in Arkansas now have a strong disincentive against allowing their neighbors to use their land for any purpose, however useful. Here, a land owner built a driveway on his own land, subdivided the land but allowed his new neighbor to continue using the driveway indefinitely, and now has been declared to have lost exclusive possession of the driveway plus title to the land next to it. His neighbor’s permissive use somehow and at some point — though no one can say when or by what conduct — transformed itself into adverse use. Equity has not been done in this case; rather, we have, in effect, penalized the idea of the good neighbor.
Permissive use cannot ripen into a legal right merely by lapse of time. McGill v. Miller, 172 Ark. 390, 288 S.W.932 (1926). The only difference between the use of the driveway in 1979 and its use in 1992 is the lapse of time. Rather than standing decades of law regarding adverse possession and prescriptive easements on its head, the chancellor should be reversed, the case should be remanded, and the chancellor should be instructed to enter a decree in favor of the appellants.