Tweedy v. Counts

40 S.W.3d 328, 73 Ark. App. 163, 2001 Ark. App. LEXIS 226, 2001 WL 274619
CourtCourt of Appeals of Arkansas
DecidedMarch 21, 2001
DocketCA 00-771
StatusPublished
Cited by4 cases

This text of 40 S.W.3d 328 (Tweedy v. Counts) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tweedy v. Counts, 40 S.W.3d 328, 73 Ark. App. 163, 2001 Ark. App. LEXIS 226, 2001 WL 274619 (Ark. Ct. App. 2001).

Opinion

JOHN B. ROBBINS, Judge.

Thornton Tweedy and his wife J Diane Tweedy appeal an order from the Randolph County Chancery Court that denied their request for an easement across appellees’ property and held that the land reverted back to appellees as property owners when the road was closed by the county court. For the reasons discussed herein, we affirm in part and reverse in part.

In 1990, proceedings were begun in Randolph County to close certain roads that were not being used so that the county would not have to maintain them. The county clerk ran a notice in the local newspaper, in May 1990, notifying the public that certain roads “not now open, shall be declared to be closed.” The notice also indicated on a diagram the establishment of certain roads, and gave notification of a larger map available at the courthouse for inspection. It is undisputed that the road at issue here was not shown on the notices for Shiloh Township or shown on the county map. Public hearings were held thereafter; however, an order resulting from the hearings and notices was never entered by Jim Andrews, who was the county judge at that time. Five years later, a subsequent Randolph County judge, John Hart, realized that no formal order closing the roads had been entered, and on July 20, 1995, he signed a nunc pro tunc order to finalize the proceedings that began with the 1990 notice.

Appellants bought their property on March 1, 1994, after the road-closure proceedings began in 1990 but before entry of the nunc pro tunc order. On December 27, 1995, appellants filed a notice of appeal from the nunc pro tunc order. No further action was taken in that proceeding until August 3, 1998, when appellees filed a motion to intervene, which was granted. On November 24, 1998, appellees filed an objection to the appeal and a petition to affirm the county court. The Randolph County Circuit Court entered an order on August 31, 1999, that dismissed appellants’ December 27, 1995, appeal with prejudice as not being timely. Appellants did not appeal the circuit court order dismissing their appeal of the 1995 county court order.

Appellees own the property on both sides of the former road, and at some point in 1994 they constructed a fence down the center of the road to keep people from trespassing, hunting, and dumping trash on their property. Appellants allege that this prevents them from accessing some of their property during spring and winter months because they have to ford a creek. Appellees argue that the water level of the creek rarely gets that high, and if it does it subsides in a matter of hours, thus giving appellants alternate access to their property. On October 23, 1997, appellants filed suit against appellees in the Randolph County Chancery Court, asking that the subject road be declared a county road, a public road, or a private easement for the purpose of ingress and egress. Appellants also asked for damages caused by appellees’ obstruction of the road. A hearing was held on March 21, 2000, and the chancery court issued the following order:

The road in question in this case was formerly a county road.... [I]t was formally vacated, closed and abandoned by the county as a result of a County Court order entered July 20, 1995. The plaintiff had the right to appeal that County Court order ... but because they did not do so in a timely manner, that appeal was dismissed.... The [appellees] owned all the property on both sides of the subject county road ... thus ... ownership of that part of the road ... reverted to the [appellees] as the property owners. The court is of the opinion that it does not have jurisdiction to modify a county court order and the court declines to do so. The claim of the [appellant] to an easement across the property of the [appellees] is denied, it being the opinion of the Court that the [appellants] have reasonable access to their property.

Appellants now appeal from this chancery court order and raise three issues: whether the court erred as a matter of law in finding that appellants’ access had been terminated by the closing of the road; whether the court erred in failing to consider whether the county court order applied to the road in question; and whether the nunc pro tunc order entered by a different judge was void.

The road in question was opened in Shiloh Township in 1947. It is undisputed that the road transverses property owned by appel-lees Ronnie and Sarah Counts and leads to, and ends on, property now owned by appellants. Although appellants’ property fronts on Black Ferry Road, a creek runs through appellants’ property, and appellants used the subject road to access their property that is on the other side of the creek.

On appellate review of ordinary equity cases, there are two different components of the chancellor’s ruling that are considered. Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999). The appellate court will not set aside a chancellor’s finding of fact unless it is clearly erroneous. Id. This deference is granted because of the regard the appellate court has for the chancellor’s opportunity to judge the credibility of the witnesses. Id. However, a chancellor’s conclusion of law is not entitled to the same deference. If a chancellor erroneously applies the law and the appellant suffers prejudice, the erroneous ruling is reversed. Id. Manifestly, a chancellor does not have a better opportunity to apply the law than does the appellate court. Id.

We first consider appellant’s second issue — whether the court erred in failing to consider whether the county court order applied to the road in question. Appellants argue that they were merely asking the chancery court to consider proof on whether the road was open within the meaning of the description in the notice of hearing that was published in 1990. The 1990 notice provided as follows:

Notice is hereby given that on the 17th day of May, 1990, at 4:30 P.M., hearing will be had concerning the establishment, widening, and closing of roads in Shiloh Township generally.
That it is proposed that all roads as marked on the diagram below shall be and become established roads of Shiloh Township, with a right of way of 50 feet, and that any and all other roads which may heretofore have been established, which are not now open, shall be declared to be closed.
[diagram omitted]
A complete larger map of said roads is available at the County Clerk’s Office in Randolph Clerk’s Office in Randolph County Courthouse, Pocahontas, Arkansas, for inspection of any interested party....

Appellants argue that this notice did not apply to the subject road because it was an open road and, therefore, was not one of the roads included in the notice.

Notwithstanding the language cited in the notice of hearing, there can be no doubt that the order at issue applied to the subject road. The nunc pro tunc order entered by the county judge on August 15, 1995 provided:

That all roads set forth and notices as amended upon proper hearings and placed in the file of this cause are hereby designated as county roads of Randolph County, Arkansas....

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Cite This Page — Counsel Stack

Bluebook (online)
40 S.W.3d 328, 73 Ark. App. 163, 2001 Ark. App. LEXIS 226, 2001 WL 274619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tweedy-v-counts-arkctapp-2001.