Martin v. Bond, 4-8834.

• Decision Date: 18 April 1949
• Docket Number: No. 4-8834.,4-8834.
• Citation: 219 S.W.2d 618
• Parties: MARTIN v. BOND.
• Court: Arkansas Supreme Court

Page 618

219 S.W.2d 618

MARTIN v. BOND.

No. 4-8834.

Supreme Court of Arkansas.

April 18, 1949.

Appeal from Chancery Court, St. Francis County; A. L. Hutchins, Chancellor.

Suit by Theo Bond, as trustee of the J. H. Blount estate, against Dwight R. Martin to enjoin defendant from closing a certain road. From a decree for the plaintiff, defendant appeals.

Affirmed.

Fletcher Long, of Forrest City, for appellant.

E. J. Butler, of Forrest City, for appellee.

MILLWEE, Justice.

The J. H. Blount estate owns a 200 acre farm near Madison in St. Francis County. The St. Francis River runs on the north and east sides of the Blount lands. Appellant, Dwight R. Martin owns a farm adjoining the Blount lands on the west.

Appellee, Theo Bond, as trustee of the J. H. Blount estate, brought this suit to restrain appellant and his tenants from closing a road which extends across appellant's land from the Blount farm on the east to a county road leading north to Madison on the west. Appellee alleged that the road furnished the only reasonable and convenient way to and from the Blount lands; that it had been in use by the owners and tenants of the Blount property and the public generally for over 50 years; that appellee and the public generally would be without access to lands lying east of appellant's lands if said road is closed. It was further alleged that appellee would suffer irreparable injury by closing the road and that he was without adequate remedy at law.

Appellant filed a motion to dissolve a temporary restraining order issued by the court in which pleading he denied the allegations of the complaint. After two hearings the trial court found that the road in controversy had become a public way by prescription, and the temporary restraining order was made permanent. This appeal challenges the correctness of the decree based on the chancellor's finding.

The road in question was established by appellee's father in 1892 and originally followed a meandering route along Crow Creek across the lands now owned by appellant. About 1923 or 1924 the route of a portion of the road was changed to run as it does today because of washouts along the banks of the creek. An insurance company acquired the Martin lands by foreclosure sometime prior to 1924 and sold to Ples Purcell in December, 1936. The warranty deed to Purcell contained a general exception as to roads across the lands conveyed. Appellant purchased the land from Purcell in 1943.

The lands of both parties have been occupied and in cultivation for more than 50 years. Eight or nine tenant families have resided on the Blount lands and have produced more than 100 bales of cotton per year for a number of years. The proof shows that these families and the public generally used the roads as it originally ran without interruption until 1923 or 1924, when the route was changed. This use was continued over the changed route until 1938 or 1939. There is considerable dispute in the testimony as to whether the road was thereafter used by appellee's tenants and the public under claim of right or by permission of Purcell and appellant.

Some of Blount's tenants were warned by Purcell to stop using the road but most of them continued to do so despite the warnings, after consulting their landlord. There was apparently no effort on the part of either Purcell or appellant to stop use of the road by the general public. The county judge testified that he warned Purcell not to close the road. While there was no order of the county court making the road a public way, it was shown that the county worked the road at times prior to 1924 and that tenants on the Blount estate worked and assisted in maintaining the road from 1924 to 1939, and at times since. There are 25 or 30 school children living on the Blount lands who would have to walk two and one-half miles farther to school if denied a way across appellant's land. Photographs introduced by appellee show the road to be well traveled and tend to refute the testimony of some of appellant's witnesses that it was merely a turn-row.

The greater weight of the evidence also shows that an alternate route over the lands of another adjacent owner was about two and one-half miles longer than the route in controversy. The alternate route was also narrow, impassable during winter months, and used only by permission of the owner of the lands through which it ran.

The principal contention of appellant for reversal of the decree is that, since the road in controversy is across uninclosed lands, a presumption arises that the use by appellee and the public generally was permissive and that this presumption has not been overcome by an affirmative showing of adverse use for more than seven years. In most of the cases relied on by appellant the route sought to be established as a public way by prescription was across lands which were not only uninclosed but also wild, unimproved and unoccupied. Some of these are Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S.W. 563; Caddo River Lumber Co. v. Rankin, 174 Ark. 428, 295 S.W. 52; and Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S.W. 2d 712.

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