concurring. I agree that the trial court’s grant of summary judgment should be affirmed but write separately because I disagree with the majority’s rationale. I do not share the majority’s opinion that the subject easement deed to the City of Fayetteville was not ambiguous.
The deed granted to the City and its assigns “the right-of-way and easement to construct, lay, remove, relay, enlarge, and operate a water and/or sewer pipeline or lines, manholes, driveway and appurtenances thereto” across the Coveys’ property. Then in the habendum clause the document provided:
TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such pipe line or lines, manholes, driveway and/or appurtenances, thereto shall be maintained, with ingress to and egress from the real estate first hereinabove described for the purpose of constructing, inspecting, maintaining and repairing said lines, manholes, driveway and appurtenances of Grantee above described, and the removal, renewal and enlargement of such at will, in whole or in part. (Emphasis added.)
I acknowledge that these provisions could be reasonably construed to grant the City the right-of-way across the subject property for uses other than incidental to laying, operating and maintaining water and/or sewer pipelines. However, the question on the issue of ambiguity is whether this language would also permit a reasonable construction that the right-of-way was limited for use only incident to the City’s water and/or sewer system operations. I am of the opinion that the deed could be reasonably construed either way and, consequently, is ambiguous.
The inquiry then becomes what was the intent of the parties to the easement deed, see Winningham v. Harris, 64 Ark. App. 239, 981 S.W.2d 540 (1998), and whether the affidavits before the trial court in support of, and in opposition to, the parties’ respective motions for summary judgment left any genuine issue of material fact in dispute. Both parties to the deed, the City, through its land agent who had negotiated with the Coveys for the grant in 1987, and the grantor Dr. Covey, avowed in their affidavits that it was the intent of the grantors and grantee that the access easement not be restricted to any particular purpose. Therefore, it does not appear that any genuine issue of material fact remained, and the trial court could properly grant summary judgment to the City.