ARKANSAS GAME & FISH COMMISSION
v.
Thomas E. LINDSEY, Alfred Peitz, and C.W. Elrod.
No. 86-19.
Supreme Court of Arkansas.
June 1, 1987.For opinion see: 292 Ark. 314, 730 S.W.2d 474.
PURTLE, Justice, concurring in part and dissenting in part.
I dissent from that part of the opinion which addresses the portion of the road known as "Webster's Ridge Road." There is only one road between the Saltillo Road and Green's Lake, the road in question. There is no other road that reaches the landing on Lake Conway which is known as Green's Lake. If the appellees are prevented from traveling along this road, they have in actuality lost the use of their property. It is well established that property cannot be taken without just compensation and without due process of law.
The land owned by the appellant was received through a quitclaim deed from the United States. Ownership of the land had been acquired by the United States subject to existing easements. Obviously the appellant took only such title as the United States had. Faulkner County was not a party to the condemnation suit wherein the United States gained title to the lands in question. The United States did not receive, nor could it convey, title to the road easements through this property.
The evidence produced at trial supported the chancellor's findings that the public had acquired a prescriptive right to use the road from the Saltillo Road to Green's Lake. It is undisputed that the appellant established that part of the road which the majority designates as "Webster's Ridge Road." This newly prepared section was primarily for the benefit of the appellant and was an exchange for existing roads over the property. There was an agreement between the appellant and Faulkner County to exchange the old roads for the new one. Faulkner County thereafter treated the new route as a part of its county road system, keeping it open to the public, grading and maintaining it.
The decree in part states:
... Plaintiffs are owners of the following described lands ... access to which property is provided by means of a roadway commonly known as "Green's Lake Road", which runs from ... the "Saltillo Road", to ... the shoreline of Lake Conway on plaintiff's lands.
. . . . .
Prior to 1940, two roads led into the area known as the saddle, which, in fact, became and were county roads by operation of law through their usage as mail routes and school routes; service to the residents, the church, and the cemetary; and by the use of county personnel and equipment in establishing and maintaining said roads.
. . . . .
Between 1955 and 1960, Arkansas Game and Fish Commission and Faulkner County, Arkansas, relocated said prior roads into the road now known as the Ridge Road ... Said road has thereafter been used by the general public. Faulkner County and Arkansas Game and Fish Commission have maintained said road, and said road is a public road, part of the county road system of Faulkner County, Arkansas.
. . . . .
Wherefore, ... that roadway known as the "Green's Lake Road", as now located, running from its eastern terminus at its intersection with the county road known as the "Saltillo Road", ... be and the same is hereby found and decreed to be a public road, and a part of the county road system....
This Court held in Chaney v. Martin, 205 Ark. 962, 171 S.W.2d 961 (1943), that:
We do not deem it necessary to decide whether the proof in this case justified the finding that appellee had acquired by *724 prescription an easement along the old route used by him in crossing appellant's land. Regardless of whether appellee had acquired such right, it is shown by the evidence that appellant recognized this right to the extent that he provided for appellee a new right-of-way across his land, and the evidence further shows that appellee accepted this new route and used it for several months. Appellee thereby surrendered any prescriptive right to use the old route that he might have possessed. This exchange of routes, accompanied by surrender of the old route and acceptance and continued use of the new route by the appellee, as was shown by the evidence in this case, was effective, even in the absence of any writing to evidence the agreement.
In the more recent case of Higgins v. Blankenship, 270 Ark. 370, 605 S.W.2d 493 (1980), the Court of Appeals upheld and reaffirmed the rule in Chaney. The Court of Appeals in a factually similar situation held that there was an easement by agreement, rather than by prescription, and such easement could be lost only by abandonment. This Court reached the same result in Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977), and went on to hold that an oral agreement was sufficient to establish the right of a roadway. We further held that such easement, even though the result of oral agreement, was transferred by deed as an appurtenance to the land.
It does not matter whether the appellees had established an easement by use or prescription because the appellant agreed to allow the use of the new road in exchange for whatever right the appellees had in the existing roadways. The appellant had the right to grant the easement by agreement.
It is impossible to get to the appellee's property by land without going across some of the lands owned by the appellant. The majority finds that an easement along the Green's Lake portion of this road has been established by adverse use and prescriptive right because the public has traveled the road for more than seventy-five years. Since it is not possible to reach the lower end of the road without traveling across the lands in the upper part of the road, it is hard for me to understand how a right can be obtained across part of the road but not all of it.
Apparently the majority holds that the appellees have, in fact, acquired a prescriptive right across the Webster's Ridge portion of the road but not exactly in the same location as the new road. I think the exchange of location extinguished the old easement and established a new one. In any event, it appears from the record that it would be to the benefit of the appellant to maintain the new route rather than to force the appellees to reestablish the old route down Webster's Ridge. I think the exchange agreement between the appellant and Faulkner County had the effect of transferring the old prescriptive or adverse use roadway to the new location. The acceptance and use of the new route is sufficient consideration to establish the new easement.
The chancellor found that sometime between 1955 and 1958 the county and the appellant agreed to the relocation of the road to its present site. He also found that the road had thereafter been used by the general public. These findings of the trial court force me to conclude that the new location was established by agreement and that this agreement had the same effect as establishing a prescriptive easement. Therefore, the majority's reliance upon the doctrine that the statute of limitations does not run against property owned by the state is misplaced. This doctrine is simply not relevant where, as in the present case, the facts establish an easement by agreement.
The majority opinion is unique in that it grants the public the use of the distal portion of the road but denies use of the portion of the road which provides access to the "Green's Lake Road." There is no other access to this portion of the road except by the "Webster's Ridge Road." Apparently the majority means to provide access over the old routes, which were found to have been used by the public for more than seventy-five years, or perhaps the majority intends for the appellees to *725 resort to acquisition of a road across the Arkansas Game and Fish Commission lands pursuant to Ark.Stat.Ann. § 76-110 (Repl. 1981). In any event, it seems to me that granting the use of one section of the road and denying use of the other section is not only contrary to the facts and the law but lacks any reasonable basis.
The majority opinion fails to mention the standard of review on appeal. There is no reason revealed in the record for this Court to find that the chancellor was clearly wrong in its findings and the failure to mention the standard of review does not render the standard inapplicable. I believe that the chancellor's decision is in accordance with the overwhelming evidence presented at the trial and is not clearly erroneous.
In my opinion the chancellor should be affirmed in all respects.
GLAZE, Justice, dissenting.
The majority court is clearly wrong in two respects. First, it concludes erroneously that the trial judge found adverse users acquired a prescriptive right against the State to the relocated road known as Webster's Ridge Road. Second, it then applies the wrong rule of law, viz., that the statute of limitations does not run against property owned by the State.
Obviously, a person cannot hold adversely to the State, and the trial court did not, and doubtless would not, make such a holding. What the trial judge did find is as follows:
Prior to 1930 two roads led into the area known as the Saddle which, in fact became county roads by operation of law through their usage as mail routes school routes service to the residents, church and cemetery in the area and by the use of county personnel and equipment in establishing and maintaining such roads. The United States of America acquired title to the land served by such roads in 1940 but, Faulkner County was not made a party to such condemnation action and the rights of the county and of the public in and to such roads were not affected. Between 1955 and 1958 Arkansas Game and Fish Commission and Faulkner County relocated such prior roads into the road now known as the Ridge Road. Such roads have thereafter been used by the general public. Faulkner County and Arkansas Game and Fish Commission have maintained said road, said road is a public road, part of the county road system of Faulkner County, Arkansas. (Emphasis supplied.)
Consistent with the trial judge's findings above, the majority concedes that, since the early 1900's, the public traveled the entire roadwaythe Green's Lake Road (western segment) and Webster's Ridge Road (eastern segment)and had established that right-of-way by prescription. Because, however, Ridge Road, the eastern segment, was relocated sometime between 1955-1960, the majority somehow concludes the public use to that part of the public right-of-way ended. That simply is not the law. In Chaney v. Martin, 205 Ark. 962, 171 S.W.2d 961 (1943), a dispute arose concerning whether Martin had a right to use a road that crossed Chaney's property and accessed to a public highway. Martin claimed the road was an easement by prescription but the court determined whether Martin had acquired such a right to cross Chaney's land was of no moment because the evidence showed Chaney recognized this right to the extent that he provided Martin a new right-of-way across his land and that Martin accepted and used the new route. The court held the exchange of the old road or route for the new one was effective, even in absence of any writing to evidence the agreement. The situation at bar is no different except here the appellees and the public had firmly established their right-of-way by prescription. Contrary to the majority's holding, all the trial judge found here was that both roads by prescription became public easements and, while the eastern segment (Ridge Road) was relocated between 1955-1960, both the State and Faulkner County continued to maintain that eastern segment as a public road the same as it had previously been treated.
*726 The record is abundant with evidence to support the trial judge's finding. The evidence reflects that, when the property over which these public roads ran was condemned, the government took the property, specifically subject to existing easements for public roads and highways. Appellees presented proof that this entire route to their property was used continuously, and it was recognized and maintained by the government as a public easement. For this court to hold otherwise dehors the record and improvidently invades the province of the trial judge.
The majority became side-tracked by its discussion on county roads which juxtaposed it into position to conclude that the road in question is not a county road because the road was never dedicated or condemned as such. Thus, the majority concludes, the road was not a road which the county had authority to maintain, exchange and to hold open to the public. That issue is but a red herring since the real point in issue is whether the road was a "public easement," not a county road. As mentioned earlier, the record is replete with evidence that both the State and Faulkner County maintained and treated the entire road or easement as a public one, and both were responsible for changing, at times, the eastern portion of the road to ensure safe passage by the public.
I must also say that the majority decision leads to a rather silly holding, viz., it permits appellees the use of the western half of the public easement that leads to their property, but the only access to it is the eastern half which the majority now limits access to, holding it no longer is a public road or easement.[1] Thus, the appellees, from their present property, have access to one-half a public road that leads east to nowhere, except the middle of a wildlife area.
Unfortunately, our court got detoured, and instead of meeting the real issue in this case, we have only complicated matters. The State's main concern is appellees' possible residential development of their private property, which is located on Green's Lake and is immediately west of and adjacent to the State's wildlife property. Except by way of the lake, the only ingress and egress to appellees' property is over the State's wildlife property. On this point, I agree with the State that any use of the public road may be that use which is compatible and consistent with the use authorized by the easement. Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967). For over seventy-five years, the roads in question provided the general public access to Green's Lake for recreation purposes. Any expanded purpose or use of the easement simply would not be permissible.
I would affirm.
NOTES
[1] The trial court specifically ordered the entire roadfrom its eastern terminus commencing at the Saltillo Road thence northwesterly to the appellees' propertya public road.