In an April 30, 2014, decision, Johnson v. Kros, the Arkansas Court of Appeals affirmed a trial court’s finding that the deeding of property into a federal Wetlands Reserve Program did not create a public right of access.
The dispute between adjoining landowners arose out
of a “Warranty Easement Deed” between Riverbend and the U.S. The Deed placed a
pond located on Riverbend’s property into a Wetlands Reserve Program. The U.S.
paid Riverbend around $1.5 million for the Deed.
At the same time as the Deed, the landowners
directly to the south of Riverbend, the Johnsons, granted an easement to the
U.S. permitting the overflow of pond water from the Riverbend property onto the
The Johnsons sought permanent access to the
Riverbend pond. They argued that the pond easement gave them a right of access
to Riverbend’s land, and that the Deed put the water and wildlife of the pond
into the public domain.
The trial court denied the Johnsons’ claims and
permanently enjoined them from going onto the Riverbend property. The decision
turned on the plain and unambiguous language of the Deed, which reserved to
Riverbend the “the right to prevent trespass and control access by the general
public,” and the “right to undeveloped recreational uses, including hunting and
fishing, and including the leasing of such rights for economic gain . . . .”
The trial court held that this language made it clear that the Deed did not
“open for use [Riverbend’s property] as a recreation area by the general public
or the [Johnsons] for any reason.” Observing that there is, “nothing ambiguous
or uncertain about the language of the easement,” the Arkansas Court of Appeals
The full decision of the Arkansas Court of
Appeals, Johnson v. Kros, can be
found at 2014 Ark. App. 254 (2014).