concurring. At the conclusion of trial, the chancellor stated that he had decided a similar case a few years ago which was appealed and affirmed by this court, and he was deciding the case at bar the same way. In the earlier case, which we affirmed by unpublished memorandum opinion, the chancellor found that the maintenance of gates on a road for seven years did not terminate the public’s right to a prescriptive easement in the road. Although at first blush the two cases appear similar, the case at bar is factually distinguishable from the earlier case that we affirmed, and the chancellor’s reliance upon it in .this case appears misplaced. Perhaps when the chancellor stated he was relying on the earlier case, he realized that whether the gate is open or closed is not dispositive, but this was not clearly expressed. Therefore, I write this concurrence only to emphasize to the reader that the closing of the gates is only evidence of intent to establish control.
On trial de novo in chancery cases, the decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have in part or in whole given the wrong reason for his result. Frawley v. Smith, 3 Ark. App. 74, 79, 622 S.W.2d 194, 197 (1981).
James R. Cooper, Judge, dissenting. I respectfully dissent from the majority decision in this case, as I believe the majority decision here is contrary to the prior holdings of the Arkansas Supreme Court.
The majority here has held in effect that, when a gate is erected and maintained for seven years for the purpose of reasserting the owner’s dominion over a roadway, the gate must also sufficiently interfere with the public’s use of the roadway so that it brings to the attention of the public such notice of the owner’s intent as would require the public to take action to protect its prescriptive right in order to terminate the easement. While I do not argue whether this is the better rule of law, it is not the law followed previously in this state.
The chancellor found that, because the gates in the case at bar were left open, the appellants did not give the appellees sufficient notice that they were terminating the appellees’ easement to cause the appellees to take some affirmative action. In Porter v. Huff, 162 Ark. 52, 54, 257 S.W. 393 (1924), the Supreme Court held that, when the appellee enclosed his land and placed gates across the road, it was notice to the public that, thereafter, they were passing through the land by permission, and not by right, and the public lost any right it may have acquired by acquiescing in a permissive use thereof for a period of more than seven years after the road was closed by the gates.
The rule is well established that when a gate is maintained for more than 7 years across a road in which the public has a prescriptive easement, then it is deemed that the public has abandoned the road and the landowner has the right to close it permanently and restrict the road to permissive use.
Munn v. Rateliff, 247 Ark. 609, 613, 446 S.W.2d 664, 667 (1969). Relying on its opinions in Martin v. Terrell, 229 Ark. 787, 789, 318 S.W.2d 607, 608 (1958), and Hockersmith v. Glidewell, 153 S.W. 252, 253 (Ark. 1913), the Supreme Court further clarified this rule in Hoover v. Smith, 248 Ark. 443, 445, 451 S.W.2d 877, 879 (1970), when it stated that “erection and maintenance of a gate by an owner does not give notice that subsequent use of a way across his lands is permissive and not as a matter of right, unless it was maintained as a means of asserting the owner’s dominion over the road.” See also Johnston v. Verboon, 269 Ark. 126, 128, 598 S.W.2d 752, 754 (1980); Wallace v. Toliver, 265 Ark. 816, 580 S.W.2d 939 (1979); accord Hall v. Clayton, 270 Ark. 626, 606 S.W.2d 102 (Ark. App. 1980). The Supreme Court has further held that it is the existence of the gate and not how continuously it is closed that constitutes notice. Weir v. Trucks, 255 Ark. 494, 498-99, 500 S.W.2d 923, 926-27 (1973); Munn, 247 Ark. at 613, 446 S.W.2d at 667; Brooks v. Reedy, 241 Ark. 271, 278, 407 S.W.2d 378, 381 (1966); and Mount v. Dillon, 200 Ark. 153, 156, 138 S.W.2d 59, 60 (1940).
I believe the majority’s decision is contrary to the existing case law; therefore, I dissent.