Wade v. Moody, 5--6228

• Decision Date: 15 October 1973
• Docket Number: No. 5--6228,5--6228
• Citation: 255 Ark. 266,500 S.W.2d 593
• Parties: Bill WADE, Appellant, v. Cleo MOODY, County Judge, et al., Appellees.
• Court: Arkansas Supreme Court

Page 593

500 S.W.2d 593

255 Ark. 266

Bill WADE, Appellant, v. Cleo MOODY, County Judge, et al., Appellees.

No. 5--6228.

Supreme Court of Arkansas.

Oct. 15, 1973.

Rehearing Denied Nov. 19, 1973.

Bob Scott and Robert D. Smith, Little Rock, for appellant.

Jim Guy Tucker, Atty. Gen., by Lonnie A. Powers, Asst. Atty. Gen., Little Rock, for appellees.

BROWN, Justice.

A complaint was filed in the Lawrence County Chancery Court by Cleo Moody, County Judge, and David Hodges, Prosecuting Attorney, who are the appellees. By their complaint they sought to enjoin the appellant, Bill Wade, from interfering with the use of a road by the public. Appellant was so enjoined and hence this appeal. The issues joined on appeal concern (1) whether the court should have dismissed the complaint, (2) whether it was proper for the trial court to strike the testimony of one of the witnesses, (3) whether it was proved that the road was used by the public adversely to the rights of the landowner, and (4) whether the public had abandoned the use of the road.

The road in dispute was designated by the witnesses as Ridge Route Road. It runs roughly north and south and is said to be approximately three and one-half miles long. It is not a part of the county road system. It connects on each end with east and west roads which are a part of the county road system. A substantial portion of the road traverses lands owned by appellant. The record in this case consists of approximately 1000 pages of testimony introduced by 52 witnesses, and a multitude of maps and pictures. The abstract of the testimony consists of 119 pages. A recount in this opinion of the substance of all testimony of all witnesses will not be made for obvious reasons. We shall later refer to some of the evidence as we resolve those points wherein the evidence is relevant.

Appellant first contends that his motion to dismiss the case should have been granted because it was not brought in the name of the State of Arkansas. He refers us to Ark.Stat.Ann. § 17--302 (Repl.1968). It is there provided that actions by counties may be brought in the name of the state for the use of the county. The motion was oral and out of time. It was made on the morning of the trial and, of course, after the case had been set for trial. See Rule 2, Uniform Rules for Circuit and Chancery Courts, March 1, 1969. Furthermore, the court's refusal to consider the oral and untimely motion suggests no prejudice to appellant; in fact the motion went to a matter of form rather than substance.

Appellant next contends the court erred in striking the testimony of Donna Lee Bacon. The case was tried intermittently over a period of months. The rule on the witnesses was invoked at the beginning of the trial. Mrs. Bacon was asked by appellant to come to the trial a week prior to her testimony. The court questioned the witness when her testimony was challenged on the ground that she had not been in the witness room. She conceded that she had been told by appellant and his wife, in general, what previous witnesses had testified, and more particularly that the appellees' witnesses had testified that the old road had existed for many years. We have grave misgivings about the ruling of the court under the circumstances, however Mrs. Bacon's testimony was placed in the record and it is very clear that it was cumulative to the testimony of a number of other appellant witnesses. It was particularly similar to the testimony of her father, Leland Killebrew. We are unable to say the appellant was prejudiced.

The third of appellant's contentions is that the trial court should have ruled as a matter of law that appellees had failed to prove that the road was used by the public adversely to the rights of appellant. One of our leading cases on this point is Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). There it is stated: 'All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right'.

Witness Robert Taylor, 84 years of age, said he had lived on the south edge of Ridge Route Road for the past 60 years. He said the road went north to Woodrow Bratcher's cabin, then on north to Gilbert Sandford's home, thence further north to Virgil Brown's home and there it joins an east and west public road; that the county grades Ridge Route Road and has done so since 1962; and that people have traveled the road over the past sixty years. He related that at one time there was a church on the road.

John Bratcher testified that his father owned the Wade lands before the latter bought them; that he was thoroughly familiar with Ridge Route Road and that it had been there for many years; that he bladed the road for the county in 1962; that the road was widened in 1965 by a man hired by the county; and that some twelve years ago appellant cut some trees across the road but the witness and some other men removed...