dissenting. I cannot agree with the majority opinion that the appellee established a “public prescriptive easement” or that the order entered by the trial court in this case was consistent with Arkansas Code Annotated section 13-6-301 (Repl. 1999) et seq. I agree with the facts as stated in the majority opinion and the statement in the majority opinion that:
We find this to be a very close case because almost all of the appellees’ witnesses were personally acquainted with the Gazaway family and their testimony about their use of the roadway was not in any way inconsistent with the scope of permission that the Gazaway family at least implicidy extended to them. We also find no significance in the fact that the county graded and graveled the road; there is no dispute that the county regularly performed this service for private landowners.
The elements of a prescriptive easement were stated in Zunamon v. Jones, 271 Ark. 789, 791, 610 S.W.2d 286, 287-88 (1981) as follows:
The controlling law of the case before us is stated in Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954).
The court in Fullenwider, after it reviewed the leading prescription right cases in Arkansas, stated the law as follows:
A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. 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.
Zunamon and Chicago Mill argue, and we believe correctly, that the original presumption in favor of a permissive use cannot be rebutted solely by evidence showing the road was used by the public over an extended period of time....
It is clear that something more than use is required. Some act sufficient to put the landowner on notice that the other party, in this case the public, is using the property adverse to the interest of the landowner. In my opinion, the appellees failed to establish that the use was adverse to that of the landowner. The volume of traffic is not sufficient.
I do not agree that the testimony of Gary Cole tips the scales in favor of the appellee. There is no doubt that the appellant established that several people were given permission to use the road to gain access to the eddy and the Dave Donaldson Wildlife Management Area, and that he felt it was a “public service” to allow some of the people access to the area. Are we to penalize the appellant landowner for allowing others to cross his property to enjoy the eddy and the wildlife management area? I find it very disturbing that the “public,” referred to in this case, never came forward to testify as to their desire to use the property of another person for purposes of fishing and hunting. The witnesses who testified had some understanding that they had permission to cross the property of the appellant, but nothing other than an assumption supports the conclusion that the others who used the property did so without permission. In my opinion, the adverse nature of the use cannot be presumed when one’s property is to be taken by the “public”; on the contrary, the presumption is that the use is permissive. Id.
I have even more difficulty with the majority opinion’s position on the archeological site. The evidence was clear that the roadway passed over burial grounds that date back 1,000 to 1,500 years. The chancellor in this case did a commendable job trying to balance the interests involved, but unfortunately the interest that lost was that of the burial grounds. The order entered herein would allow a large number of vehicles to pass over the burial grounds on a regular basis, causing irreparable damage to the site. Arkansas Code Annotated section 13-6-304 (Repl. 1999) states, “All state agencies, departments, institutions, and commissions, as well as all counties and municipalities, shall cooperate fully with the Arkansas Archeological Survey in the preservation, protection, excavation, and evaluation of artifacts and sites.” The clear intent of the legislature is to protect the history of our state and the sites that contain artifacts. Perhaps even more persuasive is Ark. Code Ann. § 13-6-308 (Repl. 1999), which states:
In order that sites and artifacts on state-owned or controlled land shall be protected for the benefit of the public, it is made a misdemeanor for any person, natural or corporate, to write upon, carve upon, paint, deface, mutilate, destroy, or otherwise injure any objects of antiquity, artifacts, Indian painting, or sites. All such acts of vandalism shall be punished as misdemeanors according to the provisions of this subchapter.
In my opinion, it is inconsistent to say that artifacts are any less important when on land privately owned by an individual as opposed to land owned by the State. Surely, the statute should afford the same protection to artifacts on private property, as it does to artifacts on State property when the landowners ask for such protection.
As stated earlier, the road clearly goes over burial grounds. Arkansas Code Annotated section 13-6-408 (Repl. 1999) makes it a misdemeanor to desecrate a burial ground the first time and a felony for subsequent acts; yet, the majority opinion leaves its enforcement to the prosecuting attorney. The issue is solidly before us. In my opinion, an order granting an injunction in this case to prohibit the destruction of the burial grounds would be consistent with the purposes of the statute and the intent of the legislature, and appropriate to address a civil wrong committed by the destruction of a burial site on the appellant’s land. Are we to wait even longer so the destruction can be complete by the time an appropriate complaint can be made? Further, what rights have the appellee obtained in this case? According to the majority opinion, they have the right to cross the land of the appellant because of the establishment of a public prescriptive easement, but to do so would be a misdemeanor or felony depending on how many times the person has passed across the burial ground. For this reason alone, I would reverse the trial court. But more importantly, is the appellee in this case willing to commit a misdemeanor or felony to fish the eddy and hunt the wildlife management area? I doubt it.
I dissent.
Neal, J., agrees.