FROM THE CONWAY COUNTY CIRCUIT COURT [NO. 15CV-15-117]
HONORABLE TERRY SULLIVAN, JUDGE
Law Firm PLLC, by: Suzanne G. Clark, for appellant.
Branscum Law Offices, by: Herby Branscum, Jr., and Elizabeth
Branscum Burgess, for appellees.
M. GLOVER, JUDGE.
Young appeals from the February 17, 2017 order and decree in
favor of Robin and James Bird. Specifically, the trial court
reaffirmed a 1986 chancery court decree that Grist Mill Road
("GMR") is a public road and that no individual
shall interfere with the right of the public to use the road.
Marianne raises two points of appeal: The trial court erred
in granting the Birds' motion for a "directed
verdict" because 1) there was substantial evidence
that the public use of GMR had been abandoned and 2) there
was substantial evidence that the Birds had changed the use
of GMR from residential to commercial and imposed burdens on
it that destroyed the purpose for which it was normally and
generally used. We affirm.
1986, Elizabeth Richardson filed a case against Marianne
Young and her sister, Jeanne Hutchinson, when the sisters put
a gate across GMR. The gate blocked Richardson from accessing
her property on the road-property she used only occasionally
to camp. In the 1986 case, the trial court entered a decree
in Richardson's favor, finding in pertinent part that
"[t]he court doth find that said road extending from the
highway southwesterly to the brow of the mountainside and
thence west is a public road and the defendants are
permanently enjoined from placing a gate across the road, or
in any way interfering with traffic along said road."
The order was binding on the parties, their heirs, and
to Marianne's testimony, between entry of the 1986 decree
and 2011 when the Birds purchased their property on GMR, the
road was used "exclusively as a residential
driveway" to access the properties located along the
road. It is undisputed the Birds do not live on their
property; instead, they rent the property to others for use
as an event venue for weddings, parties, and other similar
gatherings. Marianne filed her original complaint against the
Birds on July 24, 2015, seeking a cease and desist order for
any use of GMR for commercial purposes. She subsequently
amended her complaint to also allege nuisance, but the
amended complaint was nonsuited on Marianne's motion at
trial. It was also specifically abandoned as a claim in her
March 13, 2017 notice of appeal.
bench trial of this case, Marianne presented extensive
evidence. Officer Phillip Rappold testified about a one-time
incident in which he had to back down the road because of
three oncoming vehicles. He was not able to identify where
the vehicles had come from.
Hart, the county judge, knew of GMR's existence and where
it was located. He had never been down the road and knew
nothing of its width, surface, or ditches. He testified that
the county does not maintain the road, but further explained
that just because a county does not maintain a road does not
mean that it is not a public road. He classified GMR as a
"public access road."
testified on her own behalf. Her house is the first one on
GMR. She stated that, "since 1993 [which she
subsequently changed to 1986], GMR has only been used as a
residential driveway." She testified that the first time
she had seen the 1986 decree was "just this past year,
" but she acknowledged her now deceased husband, James
K. Young, was also her attorney in the earlier lawsuit.
Marianne stated that the mailboxes for houses located on GMR
are all located on Highway 154, and no school buses travel on
GMR. She said since the Birds purchased the property from the
Slaughter family, use of the road had changed, with more
traffic and more people who did not know about the road and
its pull-offs. She did not know how frequently there was
extra traffic on the road because she "does not get out
and about that much, " but that "it almost seems
like every time [she does, she] meets somebody" on the
road. She did not know how to average those occurrences and
testified she usually left home only about twice a week. She
said the Birds' business had "caused a greater use
on the road than when the Slaughters had the property."
She said she has had to back up to avoid being run off the
road, and she was told an emergency vehicle trying to reach
her house when she broke her leg had trouble getting to her,
but she did not know that of her own personal knowledge. She
did not know how many people usually attend the weddings or
other events on the Birds' property, and she did not know
how many times the Birds had rented the property since
Robin Bird testified as part of Marianne's case-in-chief.
She stated she did "not have any idea how much extra
traffic" the events held on her property caused on the
road or if having the events changed the use of GMR. She
explained there are six pull-offs on the road, and in some
areas it is wide enough to pass vehicles.
Higgins, Marianne's son and a resident along GMR,
testified that since the Birds' business began, "the
amount of traffic has increased manifold" with wedding
attendees, vacationers, cleaning crews, suppliers, and
service providers. He said the attendees come and go multiple
times, and a lot of trucks pull trailers down the road. He
testified the ditches have been filled in, causing drainage
problems; the traffic continues until the wee ...