CHARLES A. SCHROEDER APPELLANT
TOWMATE, LLC APPELLEE
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-15-1108]
HONORABLE JOHN R. SCOTT, JUDGE
& Woods, P.L.L.C., by: C. Michael Daily, for appellant.
Law Firm, a professional limited liability company, by: Glenn
E. Kelley, for appellee.
Charles A. Schroeder appeals the March 3, 2017 order denying
him affirmative injunctive relief to access a certain road
next to his property. The Benton County
Circuit Court denied Schroeder's request for a temporary
restraining order and injunction, and the case proceeded to a
bench trial. After a trial on the merits, the circuit court
determined that Schroeder and the public had no right to use
the road. Schroeder appeals, arguing that the circuit court
erred in ruling that he had no right to access the county
road in dispute and that the circuit court incorrectly ruled
that a prescriptive easement had not been established. We
reverse and remand.
dispute in this case centers on Schroeder's right to the
use of an abandoned county road to gain access to his
property. The Delozier family once owned all the property
that is involved in this case. The Deloziers acquired title
to the land in 1959 and subsequently subdivided the land,
which resulted in five separate title chains. When this case
arose, Schroeder was the owner of two tracts of land the
Deloziers had once owned. Schroeder's two parcels of land
are referred to as "Tract 1" and "Tract
2." Appellee TowMate owned the remaining three tracts
("Tract 3," "Tract 4," and "Tract
5"). Tract 1 fronts the highway, and Schroeder uses it
for his boat-repair business. Schroeder uses Tract 2, which
is located directly behind Tract 1, as a residence.
TowMate's Tract 3 wraps around Tracts 1 and 2 like a
horseshoe. TowMate's Tracts 4 and 5 are directly east of
Schroeder's tracts. The road in dispute is located on
Tract 3-directly east of Tracts 1 and 2 and west of Tracts 4
2015, TowMate submitted plans to construct a commercial
building on Tract 3, and as a condition of development,
TowMate was required to construct a screening fence. TowMate
built a fence on top of the road, blocking Schroder's and
the public's use of the road. The fence stood
approximately one foot from the eastern boundary of Tract 1
and about forty feet from the front of the house located on
Tract 2. Schroeder claimed that he and others used the road
in question for ingress and egress onto Tracts 1 and 2.
Schroeder filed suit asserting that the disputed road was a
county road and that even if the road had been considered
abandoned, he and the public had a continued right to use the
two-day bench trial, the circuit court determined that
Schroeder and the public had no right to use the road. The
court found that the road in dispute was at one point a
county road but that it had since been abandoned, as it had
not been used by the public or maintained by any public
entity since the 1960s. The circuit court further found that
the use of the roadway was permissive after the abandonment
of the county road. Schroeder timely filed this appeal.
civil bench trials, the standard of review on appeal is
whether the circuit court's findings were clearly
erroneous or clearly against a preponderance of the evidence.
City of Tontitown v. First Sec. Bank, 2017 Ark. App.
333, at 6, 522 S.W.3d 834, 838. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court, on the entire evidence, is left with a firm
conviction that a mistake has been committed. Id.
Facts in dispute and determinations of credibility are solely
within the province of the fact-finder. Id.
facts in this case are similar to the facts in Sevener v.
Faulkner, 253 Ark. 649, 488 S.W.2d 316 (1972). There,
the parties were next-door neighbors who shared access to a
county road that ran north and south between their homes. It
was undisputed that the old county road was no longer in use,
having been replaced by a new state highway. The appellant
had a survey made and discovered that the county road running
between the houses was inside her east boundary line.
Subsequently, she moved her east boundary fence, which then
blocked the appellees' entrance to their home. The
supreme court held that the fact that the county road had
been replaced by a new state highway did not affect the
rights of both parties to use the road ingress and egress,
even though the old road was inside the boundary line of one
of the parties.
cannot distinguish the present circumstances in any
meaningful way from those cited in Sevener. Here,
the circuit court found that the road in dispute was at one
time a county road and that it had since been abandoned.
Under our precedent, when a public road is abandoned it does
not affect the private rights of occupants to ingress and
egress. Sevener, 253 Ark. at 650, 488 S.W.2d at 317
(1972). Furthermore, this property right is not diminished
merely because the property owner has alternative means of
ingress and egress. Wright v. City of Monticello,
345 Ark. 420, 429, 47 S.W.3d 851, 857 (2001). Therefore, it
is immaterial that Schroeder could build a road through his
Tract 1 to access Tract 2.
we must reverse on this point, we need not address
Schroeder's remaining points on appeal. Accordingly, we
reverse and remand to the circuit court for further
proceedings consistent with this opinion.