Massee v. Schiller , 243 Ark. 572 ( 1967 )

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I cannot understand how either the trial court or the majority of this court arrives at a result which permits or approves the action of appellees in erecting a new boundary fence south of the easement of appellants. I agree that a review of the first appeal¹ in this ease is essential to an understanding of-the issue involved here. I do not agree with the majority’s analysis of facts in that case. Then, appellants sought, among other things, a decree:

1. Quieting their title against all claims of appel-lees to a 20-foot lane across the entire width of the NE¼ SE¼ of Section 36, Township 4 South, Range 32 West;

2. Directing appellees to replace a fence in its former location on the north side of the approximately 790 feet of the east end of the lane, and to place same in as good condition as it was at the time of removal;

3. Restraining appellees from farther relocation of said fences and from interference in any manner with appellants’ nse of the lane, including moving fences and permitting cattle to come into and through the lane.

Appellees prayed in their answer that their title he quieted to the NE¼ SE¼ of Section 36, Township 4 South, Range 32 North, subject to a roadway easement in favor of appellants over that part of the lane which extends along the dividing line between the two forties for a distance of approximately 530 feet. In their amended answer, appellees prayed that the court order that the boundary line fences be located upon the true boundary line, subject only to the roadway easement, “which these defendants admit the plaintiffs are using, but that this easement should be across the south 20 feet of the west 498 feet of the NE¼ SE¼, Section 36 in Township 4 South, Range 32 West * *

The trial court ordered that each party be permitted to make a survey without interference of the other. At the request of appellants, the county surveyor made a survey, witnessed by Schiller. This survey located a lane or road completely across the south side of the Schiller tract described as the NE¼ SE¼ of Section 36 in Township 4 South, Range 32 West, varying in width from 20 to 24 feet. There was a fence north of this roadway and one south thereof. The fences appeared to have once extended all the way across the tract, but were down and in a state of disrepair east of the point where a roadway from this lane entered the Massee tract some 495 to 498 feet east of the west boundary line. For the west 498 feet, the north fence was the south boundary of the Schiller pasture. On the south side of this roadway, the fence had been partially removed. The north fence was 32 feet north of the true southwest corner of the NE¼ SE¼, Section 36. The south fence was, thus, approximately 12 feet north of this true corner. The roadway and fences angled slightly toward the south as they proceeded eastward but all remained north of the true line. The roadway and south fence had fallen into partial disuse and decay east of the turn-off to the Massee house, but the north fence connected with an old fence crossing the entire 40-acre tract. Trees had grown up between the old south fence and the true boundary line. The trial court found that (1) the established bounadry lime between the two 40-acre tracts was “the old fence line which divides” them; (2) appellants’ claim to a strip twenty feet in width across the east 822 feet laying wholly upon appellees’ land was without merit because of abandonment; (3) appellants had a prescriptive easement for roadway purposes across appellees’ lands in the place it was then located on the south side of the NE%- SE14. along the west 498 feet of the 40-acre tract; (4) appellees had no claim of ownership to the SE*& SÉy^ “south of the old established fence and survey line as found by the court to be the division line between these two 40-acre tracts.” This decree was affirmed by this court. There can be no question that the south fence line of the roadway or lane was definitely determined to be the boundary line between appellants and appellees for the west 498 feet of each tract.

After the mandate of this court was filed, appellees cut down the trees south of the boundary fence, took down their pasture fence along the north line of this roadway and put a new fence some 10 or 12 feet south of the old fence line which had been determined to be the boundary line. In its decree now appealed from, the trial court disregarded its previous decree and the mandate of this court by not requiring the removal of this new fence, at least to the property line along the old fence line on the south side of the roadway.

I would reverse and remand with directions to enter a decree requiring the appellees to remove any and all fences south of the old fence line south of the roadway easement across the west 498 feet of appellees ’ lands.

I am authorized to state that Harris* C. J., and Byrd, J., join in this dissent.

Conley Byrd, Justice,

dissenting. My dissent is based upon the premises that the court is permitting a material alteration of the easement acquired by appellants; that a cattle guard is but another form of a gate or gap; and that the roaming of cattle on a road, if not a type of obstruction, is at least a nuisance.

In Craig v. O’Bryan, 227 Ark. 681, 687, 301 S. W. 2d 18 (1957), wo said:

“As a general rule, when the character of an easement is once fixed, no material alteration can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement.”

The logic of not permitting a material alteration in the physical conditions essential to an easement is amply demonstrated in the present case. Here appellants had acquired an easement by prescription to the use of a road within a lane. The important element is not the existing improvements to the property of either party, but the extent of the right to utilize the easement. It is common knowledge that the access to property materially affects its market value — for instance, many people will pay more for property at the end of a road, and property along an improved public road is always more valuable than property back off the road. Consequently, it logically follows that in purchasing or improving property one should be entitled to rely on reasonable permanence of the access as it exists. Having to drive through a cow pasture to reach a proposed home site would materially affect the desires of many people to make substantial improvements. Therefore, in my opinion, today’s decision will materially reduce the market value of the property of many of our citizens, who through the years have come to rely on roads acquired by prescription.

I agree with the majority that a “. . . cattle guard is a well known device expensively used as a substitute for a gate ...” Consequently, the majority opinion runs counter to the many decisions of this court which hold that acquiescence for more than seven years in the existence of a gate across a road established by prescription amounts to abandonment of the prescription right. See Nelms v. Steelhammer, 225 Ark. 429, 283 S. W. 2d 118 (1955), and Lusby v. Herndon, 235 Ark. 509, 361 S. W. 2d 21 (1962). Not only is that the effect of the decision but the majority opinion, for precedent to support its position, quotes and relies on cases from other jurisdictions which specifically permit the placing of gates across private ways. In Brooks v. Reedy, 241 Ark. 271. 407 S. W. 2d 378 (1966), we held that the parties claiming the road by prescription lost or abandoned their right thereto when Brooks enclosed his land and placed gates across the road for a period in excess of seven years, even though the gates were left open during certain seasons of the year, especially during winter months. If the acquiescence in the existence of an unlocked wire gap or gate for the statutory period of seven years amounts to the abandonment of a prescriptive easement, how much less does this apply to the existence of a cattle guard? It appears to me that the property owner asserts the permissiveness of the passage as forcefully in one instance as in the other. The majority opinion leaves dangling the issue of whether the maintenance of a cattle guard across an easement for seven years will result in an abandonment of the easement, or whether one who uses a road where a cattle guard is maintained can ever acquire an easement. I think the citizenry of this state would best be served by treating a cattle guard as a gate, as is recognized by the majority opinion, and the rights of the respective parties should be determined in accordance with our existing law on gates and gaps.

The proof in the record shows that Miss Sarah Crawford, the sister and sister-in-law of appellants, resides on their property, and that the roaming of the cattle on the road amounts to an obstruction of the road as to her. While prior to Initiated Measure No. 1 of 1950 (the so-called Stock Law) this argument might not have been tenable, it appears that the people of this state, by prohibiting the roaming of cattle on the public roads, have recognized cattle to be, if not an obstruction to the use of the roads, at least a nuisance. As far as an individual’s use of a private road is concerned, the roaming of cows on the road to his home is certainly as obnoxious and obstructive as their roaming on a public road would be.

Finally, even if I should accept the majority theory that the trial court has some discretion in permitting the use of cattle guards on a private way, I think the trial court abused its discretion in this instance. The record conclusively shows that the road in issue, 20 feet wide, extends along appellees’ southern boundary for a distance of only 498 feet. This total area amounts to less than one-fourth of an acre, and when the roadway, which appellants have been granted the right to grade and maintain, is taken out of the area involved, little or no practical benefit from the use of the area as a pasture will result to appellees except as it may add fuel to the feud that has been existing between these parties.

Therefore, I would reverse and remand the ease with directions to appellees to take the road out of their pasture.

Harris, C. J., and Fogleman, J., join in dissent.

1 Reported as Massee v. Schiller, 237 Ark. 809, 376 S. W. 2d 558.