Wayne Riffle and Charles Mitchell, a/k/a M.R. Properties, a partnership formed for the purpose of obtaining real property for recreational use, entered into negotiations with Helen Kilgallon and Marie Stagmer (“Sellers”) for the purchase of property located along the Arkansas River near Scott, Arkansas. M.R. Properties agreed to purchase the property upon securing an easement for ingress and egress. To satisfy this condition, M.R. Properties, pursuant to an agreement between the parties, began by acting as an agent for the sellers and attempted to purchase an easement across neighboring landowners’ property, but were unable to do so. M.R. Properties next proceeded as attorney-in-fact for the sellers and instituted suit in Pulaski County Court to have a public road declared across the land of adjoining landowners. During that action, an adjoining landowner produced a quitclaim deed, file-marked July 13, 1971, which granted an easement to and from the sellers’ land. Because the quitclaim deed appeared to frustrate M.R. Properties’ ability to prove “necessity” for a private road as required by Ark. Code Ann. § 27-66-401(3) (Repl. 1994), M.R. Properties abandoned that action and began working with Everett L. Martin, an attorney for the sellers, in order to obtain title insurance so that they could go forward with the purchase of the property. After being assured that the title insurance would be issued, M.R. Properties closed on the property on October 12, 1994.
The title insurance was obtained through Wilson & Associates and underwritten by United General Tide Insurance Company (“United”), the beneficiary of the policy being M.R. Properties. After the purchase, the adjoining landowner, across whose property the quitclaim deed’s easement was described as running, refused to allow M.R. Properties access. M.R. Properties contacted Wilson & Associates to request assistance in obtaining access to the newly purchased property, but Wilson & Associates denied that coverage existed for that particular problem. M.R. Properties then instituted an action against the adjoining landowner seeking a declaratory judgment to enforce the easement found in the quitclaim deed. After a hearing, the Pulaski County Chancery Court determined that the quitclaim deed did not create an appurtenant easement nor an easement by necessity since there had been no common ownership of the property prior to its division, though the court did find that M.R. Properties had proven a need for access to the property. On appeal, the Arkansas Supreme Court affirmed the chancellor. See Riffle v. Worthen, 327 Ark. 470, 939 S.W.2d 294 (1997).
Demand was then made to United for the face amount of the policy, $20,000, on the theory that the property was a total loss since no access existed. The insurance company denied coverage, asserting, among other defenses, that the policy excluded coverage; and that M.R. Properties had failed to inform the insurance company about the ingress/egress problem. Appellants then brought suit against the insurance companies, resulting in this appeal.
By order of September 10, 1997, the trial court found, among other findings, that: three policy exclusions prohibited M.R. Properties’ recovery; M.R. Properties had known about the defect in the right of access, yet went ahead with the closing on the property; the purchase price was reduced due to the lack of access; and, M.R. Properties suffered no damages. A subsequent order was entered March 9, 1998, awarding United $10,000 in attorney fees.
M.R. Properties appeals from these orders, asserting four points for reversal: (1) that the trial court erred by holding that the appellants created, suffered, assumed or agreed to the defect of lack of access to the property and that by so doing were excluded from coverage under the policy; (2) that the trial court erred in holding that the defect in the lack of access to the property was not known to the company, but known to the plaintiffs, and not disclosed in writing to the company prior to the date the claimant became an insured under the policy; (3) that the trial court erred in holding that no loss or damage resulted to the insured claimant; and, (4) that the trial court abused its discretion by awarding attorney fees to United General Title Insurance. We reverse in part and affirm in part.
Since this was a bench trial, in order for this Court to reverse, we would have to either determine that the trial court erred as a matter of law or decide that its findings were clearly against the preponderance of the evidence. See Taylor v. Richardson, d/b/a Richardson Construction Co., 266 Ark. 447, 585 S.W.2d 934 (1979); Ark. R. Civ. P. 52.
Addressing appellants’ last argument first, that the trial court abused its discretion by awarding attorney fees to United pursuant to Ark. Code Ann. § 23-79-208(a) and (b) (Repl. 1992), we note that United’s brief concedes this argument to appellants in fight of the recent Arkansas Supreme Court decision, Village Market, Inc. v. State Farm Gen. Ins. Co., 334 Ark. 227, 975 S.W.2d 86 (1998), a holding making it clear that attorney fees cannot be awarded to an insurer under section 23-79-208. While acknowledging that Village Market, Inc. was handed down subsequent to the trial court’s grant of attorney fees in United’s favor, we are nonetheless bound to reverse the trial court on this point.
In regard to appellants’ remaining points, because we find that appellants suffered no loss or damage by the failure to attain ingress to and egress from the property they purchased, we need only address one as the others are rendered moot.
The parties agree that there are no Arkansas cases that provide a measure of damages for litigants whose suits are founded upon disputes over title insurance claims and have arisen as a result of the litigant’s inability to secure access to and from their recently purchased property. In this case, appellants presented evidence at trial showing that their cost for purchasing and acquiring the real estate amounted to $22,650. In addition, appellants testified that, at the time of the purchase and in order to protect their interests, they caused a title insurance policy, in the amount of $20,000, to be issued with themselves the named beneficiaries. After presenting this testimony, appellant Riffle then explained from the stand that, without access, the property was useless. Riffle placed the value of the property at zero dollars.
The trial court found that appellants purchased property that did not have a right of access to begin with, that the access problem was taken into account when negotiating the purchase price, and that appellants nonetheless went forward with the purchase, knowing that the problem of access had not been resolved. As a result, the trial court failed to find that appellants suffered any loss or damage.
Appellees argue that appellant Riffle admitted at trial that the property retains value by the fact that it could be reached by boat via the Arkansas river and that the property was purchased for recreational purposes and not for commercial development. Furthermore, appellees argue that the policy itself required the parties to calculate damages and that the $20,000 policy limit could not be recovered unless appellants proved that some defect reduced the value of the land. Stated simply, appellees contend that appellants failed to prove that they suffered damages. We agree.
While an owner of property may, in appropriate circumstances, testify as to the value of his/her property, Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992), and while the right of access, in itself, may carry value, see, e.g. Arkansas State Highway Commission v. Marshall, 253 Ark. 212, 485 S.W.2d 740 (1972), the evidence of damages must be such as to allow findings from established facts and not by conjecture. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976).
Appellants were well aware of the access problem when they decided to move ahead and purchase the property at issue. In fact, as the trial judge found below, the purchase amount tends to reflect due regard for the problem of access. Appellants received what they bargained for and cannot now claim that they have suffered damages. Furthermore, appellants acknowledged that they do have access, though only by boat. Thus, in terms of calculating value based on access, this property does retain some value. Appellants have failed to present this Court with convincing proof, or argument, to support their contention that the chancellor’s finding was erroneous as a matter of law or clearly against the preponderance of the evidence.
Finally, we note that the Pulaski County Chancery Court found appellants to have a need for a private road, thereby evidencing their satisfaction of an important element of Ark. Code Ann. § 27-66-401, authorizing the establishment of legal access. Thus, while appellants knew what they were getting into, they may still avail themselves of alternative statutory remedies and be relieved of the burden of not having access.
Reversed in part; affirmed in part.
Neal and Roaf, JJ. agree. Arey, Jennings, and Rogers, JJ. dissent.