Jack Nelson Jones Professional Association

March 19-25, 2018

Young v. Bird, 2018 Ark. App. 141 (February 21, 2018)

 

This appeal comes from the Conway County Circuit Court, honorable Terry Sullivan presiding. This case concerns the abandonment of a public road.

 

In 1986, Elizabeth Richardson filed a case against sisters Marianne Young and Jeanne Hutchinson, when they put a gate across Grist Mill Road (“GMR”) thereby blocking Richardson from accessing her property on the road (property she used only occasionally to camp). In the 1986 case, the trial court entered a decree in Richardson’s favor, finding that GMR was a public road and enjoining Young and Hutchinson from pacing a gate across the road or interfering with traffic along the road. The order was binding on the parties, their heirs, assigns.

 

According to Marianne, between 1986 and 2011 when the James and Robin Bird purchased their property on GMR, the road was used “exclusively as a residential driveway” to access the properties located along the road. The Birds did not live on their property; they rented it out as an event venue for weddings, parties, and the like. Marianne filed her complaint against the Birds, seeking a cease and desist order for any use of GMR for commercial purposes.

 

At trial, Marianne presented extensive evidence. Jimmy Hart, the county judge, testified that the county did not maintain the road, but further explained that just because a county does not maintain a road does not mean that it is not a public road. He classified GMR as a “public access road.” Marianne testified that, since 1986, GMR had only been used as a residential driveway. Marianne stated that the mailboxes for houses located on GMR were all located on Highway 154, and no school buses traveled on GMR. She said since the Birds purchased the property from the Slaughter family, use of the road had changed, with more traffic and more people who did not know about the road and its pull-offs. Robin Bird testified that she had no idea how much “extra traffic” the events held on her property caused on the road or if having the events changed the use of GMR.

 

Don Higgins, Marianne’s son and a resident along GMR, testified that since the Birds’ business began, the amount of traffic increased with wedding attendees, vacationers, cleaning crews, suppliers, and service providers. He testified the ditches have been filled in, causing drainage problems; the traffic continues until the wee hours of the morning; and he had called the police three or four times because of noise and a vehicular incident. Kimberly Darling testified that since the Birds bought the property, the difference in the traffic is significant. She said it created a sense of a lack of security, and she has had trouble with encountering guests and customers on the road. She stated normal residential traffic up and down the lane might be half a dozen vehicles a day, but now there may be days when there are thirty, forty, or fifty vehicles traveling up and down the road. She acknowledged that the majority of the events had probably on the weekends but that there were also times when there was weekday traffic. At the close of Marianne’s case, on motion by the Birds, the Court entered a directed verdict in favor of the Birds. Marianne appealed.

 

On appeal, Marianne argued that there was substantial evidence to demonstrate that the public use of GMR had been abandoned. Marianne contended the testimony presented established that since entry of the 1986 decree, GMR had been abandoned as a public road because it had been “used only as a residential driveway for families, visitors, utilities, delivery services, and maintenance services.” She further relied on her testimony that the mailboxes were all located on Highway 154 and that no school buses used GMR. She claimed that until the Birds’ purchase in 2011, GMR “ha[d] not been used by the public to access anything.” She and other residents along the road testified that until 2011, the use of GMR was exclusive to the residents of the road, although they recognized that UPS, FedEx, utility, maintenance, and other service vehicles used the road to access various residences located along it.

 

Marianne further contended that the testimony and evidence presented in her case demonstrated the intent to abandon public use, either “by presumption or implied intent.” In support of this contention, she noted testimony and photos presented through her son, Don Higgins, showing a “sign right at the start of [GMR] that says, ‘Private drive no outlet.’” She argued that placement of the sign was an act inconsistent with the future right to use GMR as a public road; however, the Court noted that no time frame was assigned to the sign’s installation. She concluded her first point by arguing that the evidence was of sufficient force and character either to compel the conclusion that the public use of the road had been abandoned for seven years or to raise a factual question on that issue.

 

The Court explained that the public’s right to use a road that has been acquired by prescription can be abandoned by nonuse, accompanied by an express or implied intention to abandon, or by acquiescence to, or tolerance of, the obstruction of passage. Marianne presented her evidence in an effort to establish that the public had abandoned its use of GMR after the 1986 decree was entered and before the Birds purchased their property in 2011. However, she did not present substantial evidence to show that the public’s use of the road between 1986 and 2011 was significantly different from its use preceding the 1986 decision. Moreover, the photograph of the sign stating the road was private and had no outlet proved nothing because no one ever established a time frame for it, and it did not obstruct use of the road in any fashion. For the testimony concerning lack of use by postal trucks and school buses to prove anything, the Court noted that Marianne needed to establish that those types of vehicles had used the road before 1986. She did not.

 

Further, the Court pointed to the abundance of testimony that UPS, FedEx, maintenance vehicles, visitors, and utility trucks continued to use GMR to access the residences located along it. The county judge essentially testified the county did not maintain the road, but further explained that just because a county does not maintain a road does not mean that it is not a public road. In fact, at one point in his testimony, he classified GMR as a “public access road.” Viewing the evidence in the light most favorable to Marianne and giving the evidence its highest probative value, and taking into account all reasonable inferences deducible from the evidence, the Court agreed with the trial court that Marianne could not present a prima facie case that GMR’s public use had been abandoned. Affirmed.