179 S.W.2d 454 | Ark. | 1944
The right to close a road through lands within township fourteen north, range two west, in Jackson County, is involved.
L. D. Pierce owns 1,300 acres, parts of which (at various points) adjoin some of the 1,200 acres owned by Jones.
The south half of section seventeen and the north half of section twenty, each traversed by Black River, are among the Jones holdings. The south half of section twenty belongs to Pierce.
Access to an old northeast-southwest dirt road along the river meandering through Jones' property in sections seventeen and twenty was unobstructed prior to 1915. During 1915 Jones, who had just acquired the property, placed a gate at a point on his own land just north of where the road crosses the east-west median line dividing section twenty. Various transactions relative *140 to this gate, and Jones' action in closing it and in closing a second gate across the same road south of Black River in section sixteen east of the north-south boundaries between sections sixteen and seventeen, are more particularly shown, in the footnote.1 *141
The Chancellor declined to issue an order requiring Jones to restore the gates. Pierce has appealed.
There is little doubt that the road, with seasonal variations due to obstructions caused by high water, had been used generally for many years before Jones bought in section twenty. There is testimony that as early as 1892 a defined trail skirted the river, and that no affirmative objections were made by proprietors. It is also in evidence that the land was wild, its value in that state consisting of timber, and vegetation (grass, nuts, mast, roots, etc.) suitable for grazing.
If Pierce has right of access, it was acquired by prescription because he, with others of the public, used the way adversely for seven years. The case is controlled by intention coupled with conduct. If public use had been such as to justify reasonable minds in thinking the purpose was to disregard proprietary interests, or if acquiescence by owners became tantamount to dedication, the right to withdraw use would not be lost by acts of those in title who erected gates. An explanation on behalf of appellant is that partial obstruction was designed to enclose cattle in one area or exclude them from another, and had no reference to travel.
Prescription attaches where an owner has knowingly permitted the public to use the road for a period of seven years under a claim of right. The converse is that such right does not mature if travel has been by leave or through mistake. McCracken v. State,
So, here, (wild land being affected) it must be presumed that owner-consent had been expressly or *142 impliedly given prior to 1915 and that those accommodated by this privilege had no intention of challenging ownership Such ownership — or, rather, the insignia of intent — was asserted when Jones erected a gate. If the public's act of travel (presisted in for seven years or more) had not, prior to 1915, ripened into prescription, erection of the gate was an act of ownership. It was Jones' notice to the public that he claimed a right to do the thing no one then appears to have complained of. That he and Pierce were in accord respecting the reason for building the gate is not controlling. The point is that conduct of the public — not the action or understanding of an individual — is the criterion.
The pronouncement in Porter v. Huff,
In Mount v. Dillon,
It is not necessary in the instant case to say that a prescriptive right once acquired by the public could be destroyed by acts of Jones, the landowner. Our holding is predicated upon the presumption that use of the wild land had been permissive — a presumption strengthened by failure of persons adversely interested to protest when private proprietary rights were, prima facie, exercised twenty-eight years ago and continued with but slight interruption until 1943.
Appellant points to the fact that Jones did not procure a County Court order permitting erection of the gates. Distinction between Act 74 of 1895 and Act 385 *143 of 1937 is emphasized. The former afforded a method whereby landowners in overflow areas might, through petition to the County Court, procure a judgment authorizing construction of gates across "any public highway." The 1937 enactment uses the words, ". . . across any road traversing such [overflow] lands." It is urged that since the last Act substituted "any road" for "public highway" intention was to prevent landowners from obstructing private, as well as public, highways.
While the complaint mentions the public interest, gravamen is that the road was closed "against the will of the plaintiff." The prayer was that Jones be restrained "from keeping said road closed and denying the use of it to the plaintiff."
Assuming general allegations that the road was unlawfully closed are sufficient to raise the question whether there was County Court consent, our opinion is that even though the statute be given the literal construction contended for by appellant, it affords no relief because the purpose, obviously, was to control roads in respect of which the public had a right through prescription, dedication, or otherwise. When Jones closed the gates in 1943, the public had no interest within the meaning of the Act.
Affirmed.