277 S.W. 520 | Ark. | 1925
The only question presented by this appeal for determination is whether the trial court, sitting as a jury, erred in refusing to allow appellant compensation for building and maintaining a fence on each side of the public road laid out through his land on petition in the county court, and for the cost of an underground passage for hogs and cattle to pass from one side of the road to the other in order to get water. The trial court allowed appellant damages only for the land taken in laying out the road.
The record reflects the following undisputed facts: the public had passed over the land for twenty-five or thirty years on a road west of a creek running through the land, which had not been worked by the road overseer; the old road ran through land susceptible to cultivation, and part of it was bottom land; the land was an unfenced, wooded tract, which appellant decided to fence in for a stock pasture after the passage of a stock law in that community, and, when he notified the public of that fact, they proceeded by petition in accordance with law to lay out a road though the forty-acre tract on the hillside east of the creek. After the same was laid out, the public use the new, instead of the old, road.
The disputed issues of fact revealed by the record relate to whether the public had acquired the right to the old road by prescription, and whether the benefits growing out of the removal of a road from the west to the east side of the creek offset the damages to appellant's land resulting from taking the new road.
On the first issue most of the witnesses testified that the old road had been used by the public generally for *1071 twenty-five or thirty years without let or hindrance by appellant until he threatened to fence the tract through which it ran. Appellant himself testified that the old road had been used by his permission. On the second issue some of the witnesses testified that the benefits accruing to appellant's land on account of the removal of the road exceeded the damages thereto on account of opening the new road. The court found against appellant on issues.
Appellant contends for a reversal of the judgment offsetting his damages with benefits because the public had no prescriptive rights, under the law, in the old road. In support of this contention, he cites the case of Brumley v. State,
No error appearing, the judgment is affirmed.