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Andreasen v. South Mountain Estates Property Owners Association

Court of Appeals of Arkansas, Division II

October 31, 2018

C.D. ANDREASEN AND KATHLEEN ANDREASEN APPELLANTS
v.
SOUTH MOUNTAIN ESTATES PROPERTY OWNERS ASSOCIATION ET AL. APPELLEES

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NOS. 04CV-14-1657; 04CV-15-1147; 04CV-15-1183] HONORABLE JOHN R. SCOTT, JUDGE

          The Nixon Law Firm, by: Theresa L. Pockrus, for appellants.

          Lisle Rutledge, P.A., by: Donnie Rutledge, for appellees.

          MIKE MURPHY, JUDGE

         Appellants, C.D. and Kathleen Andreasen, husband and wife, appeal from the June 26, 2017 Benton County Circuit Court order that vacated South Mountain Drive (the Drive), the roadway at issue, as a public road and denied appellants the right to ingress and egress to their adjoining property via the Drive. On appeal, appellants argue that (1) the circuit court erred when it vacated the Drive as a public road, and (2) even if the circuit court is correct in vacating the Drive, they should still be entitled to access their property via the Drive. We affirm.

         A summary of the evidence presented at a bench trial follows. Appellants bought forty acres of land in Benton County in 1974 that is adjacent to what would become the South Mountain Estates Subdivision in 1998. Appellants have access to all areas of their property, including the part that is adjacent to the Drive, without using the Drive. However, appellants' property contains a ravine in the area near the Drive, so accessing the "back side" of their property by way of the Drive is more convenient to them. Before the development of South Mountain Estates, a dirt roadway existed where the Drive is now located, which appellants used from time to time to fix their fence, brush hog, and generally take care of that side of their property.[1]

         In 1996, the county court entered an order that identified and named six roads for a proposed subdivision; one of the roads became known as "South Mountain Road."[2]After purchasing the property where South Mountain Estates Subdivision (the Subdivision) is now located, Alice Riggins and her husband caused a recorded plat of the Subdivision to be recorded in the Benton County Recorder's Office in 1998. Riggins testified that from the time they purchased the property until the plat was recorded, the area that had once been a dirt road was so overgrown that a four-wheeler was needed to access it, and there were no tracks on it. The developer of the Subdivision paid to have the Drive "black-topped," and presently the property owners' association (POA) assesses its residents and pays for maintenance of the Drive. Benton County has never maintained the Drive. The Drive is located on the southern boundary of the plat, is approximately 1400 feet long, and is approximately 50 feet wide. It is undisputed that the Subdivision is situated in Benton County outside of the corporate limits of any city or town. All twenty lots in the Subdivision have been sold.

         At the time the plat was filed, the plat contained a declaration that all the streets on the plat were for use by the general public. In 2000, at least three utility easements were filed, all of which indicated that the Drive was a public road-the southern edge of the 50-foot easement of the Drive abuts the northern edge of appellants' property.[3] Alice Riggins testified that the first time she noticed the wording "public roadway" was a couple or three years before the trial date when the utility easements were presented to her. She explained that she did not intend for the road to be public because she thought she had created a private subdivision.

         Riggins testified that the entrance to what is now the Subdivision contained a gate with a lock on it in 1989. Riggins paid $20, 000 to replace it with a heavy wrought-iron retractable gate with a masonry wall sometime before June 2001. Appellants testified that they did not notice the existence of this gate until 2007. This new gate was left open from 6:00 a.m. to 6:00 p.m. for some time while it was broken and being repaired. It was also left open from time to time when homes were being constructed in the Subdivision. Per Riggins's testimony, the gate was basically closed at all times by 2005.

         On December 11, 2007, the county court entered an order changing the street signs in the Subdivision from blue to white to indicate that the roads, including the Drive, were private.[4] Shortly thereafter, appellants and their son were able to access the gate only on several occasions either when it had been left open or when they had the code to the keypad. The Subdivision's residents use the Drive virtually every day.

         Appellants filed simultaneous petitions on December 8, 2014, seven years later, in the circuit court and the county court, seeking to declare the December 11, 2007 order as void. The POA petitioned the county court on May 27, 2015, seeking to vacate the Drive as a public road, if it was even to be considered a public road. The county court held a hearing on both petitions, and the county court entered an order on July 14, 2015, denying both.[5] Both parties timely appealed to circuit court.

         Both appeals and appellants' original circuit court petition were all tried simultaneously on February 13 and 14, 2017. At the end of the second day of trial, the circuit court entered its oral ruling, finding that (1) the county court's December 11, 2007 order is vacated for lack of notice and a hearing; (2) the Drive was declared a public road, but appellees' petition to vacate the Drive as a public road is granted, with appellants and no other members of the public (other than Subdivision residents and a handful of third parties having recorded easements) retaining any rights to use it; and (3) the public and the appellants have abandoned whatever rights they may have had to the Drive, thereby making it private as to all but the Subdivision residents. Final orders were entered on June 26, 2017, which stated in part,

35. The Court finds that the evidence supports . . . that South Mountain Drive has not been opened or actually used as a public street, alley, or roadway for a period of five (5) years ...

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