Weisenbach v. Kirk

290 S.W.3d 614, 104 Ark. App. 245, 2009 Ark. App. LEXIS 457
CourtCourt of Appeals of Arkansas
DecidedJanuary 7, 2009
DocketCA 08-508
StatusPublished
Cited by6 cases

This text of 290 S.W.3d 614 (Weisenbach v. Kirk) 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
Weisenbach v. Kirk, 290 S.W.3d 614, 104 Ark. App. 245, 2009 Ark. App. LEXIS 457 (Ark. Ct. App. 2009).

Opinion

JOHN B. ROBBINS, Judge.

This appeal arises from a circuit court’s vacation of a platted but unused section of a road in a subdivision. For the reasons expressed below, we affirm the trial court’s decision to vacate the road.

Appellees Larry and Melissa Kirk own Lot 28 in a subdivision platted in 1979 called Rolling Hills Estates 2nd Addition, outside Pocahontas, in Randolph County. Appellees Dewayne and Rhonda Smith own Lot 22 in that subdivision. Appellant Randy Weisenbach owns property outside and adjacent to the subdivision. A portion of one of the dedicated streets in appellees’ subdivision, Rolling Hills Drive, runs between their lots and ends at appellant’s property line, to the north. Although this section of the road was dedicated on paper, it was never constructed. Appellant purchased his property, which fronts on Johnson Church Road, in 2004, and created and filed a plat of Rolling Meadows Subdivision there in March 2005. On his plat, a street labeled “Paradise Trail” is laid out in such a way as to connect to the platted north end of Rolling Hills Drive. Appellant asserts that his property “abuts” Rolling Hills Drive because Paradise Trail and Rolling Hills Drive would connect, if they both were constructed. Appellees take the position that appellant is not an abutting property owner in relation to the unbuilt portion of Rolling Hills Drive or within the context of the statutory scheme by which such dedicated streets may be vacated.

In January 2005, appellees filed a petition under Arkansas Code Annotated § 14-18-105 (Repl.1998) to vacate this section of Rolling Hills Drive, alleging that it had never been used as a road. Appellant filed an objection, arguing that he planned to develop his property as a subdivision and connect Rolling Hills Drive, via Paradise Trail, to Johnson Church Road. The county court granted the petition to vacate and appellant appealed to the circuit court. In support of their petition, appellees presented the testimony of neighbors Alan Van Winkle, Tina Sharp, Gary Barker, and Carolyn Lowell; former neighbor Bill Harper; appellee Larry Kirk; and appellee Dewayne Smith. Their testimony was essentially that, before this dispute, people had used the area for hunting, cutting hay, riding four-wheelers and motorcycles, and taking walks, but had never used it as a road; that it had never been graded; and that no one had actual knowledge that it had been platted as a road. Mr. Kirk testified that there were no ruts in the field until appellant created some in January 2005.

Appellant testified that, like others, he had used the road before he owned his property, while doing some work for the previous owners of his property. He described the area in dispute as a grassy field road with a rut down one side. He stated that, when he purchased his land, it was important to him that Rolling Hills Drive be a through street because he planned to develop a subdivision. Appellant presented the testimony of three former owners of his property, Stanley Camp, Glendon Matthews, and David Matthews, to support his position.

The trial court entered its decision on January 22, 2008, stating:

3. The Court finds that even though the area was platted as a road no road bed, culverts, or other features associated with a road were ever constructed or placed in the area of the platted road.
4. The Court finds that Ark.Code Ann. § 14-18-105 and 106 do apply to this situation and must be read together to determine the procedure to be used to petition the County Court to abandon the road. The Court finds that the phrase “owner of all lots and blocks abutting upon any street ...” in Ark. Code Ann. § 14 — 18—106(a)(1) does not require that all abutting property owners must join or consent to the action, but that all are to be made parties to the action so that their voices may be heard by the County Court requiring the request to vacate or abandon the road. The road [appellees] are requesting to be vacated was not platted to benefit [appellant] and others in his addition because the person who had the road area platted did not own the adjoining parcel of property. The fact that the plat of [appellant’s] addition names the road something different is evident of this intent to not have the road in question be a continuance of said road.
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6. The Court further finds that the road being vacated is not against the interest of the public nor will it prevent ingress or egress to the lots of other property owners in the area as is addressed in Ark.Code Ann. § 14-18-107(b).
7. The Court further finds that for more than five (5) years prior to the filing of this action the use of the area platted as the road does not arise to such a use that it would cause [appel-lees] to think that the area was in fact being used as a road. Such occasional use of the area by an ATV or other vehicle does not in the Court’s mind create notice that [appellant] or others are using the area as a road or using the area against the interest of [appellees].

Appellant then pursued this appeal.

When an owner of land files a plat and thereafter lots are sold with reference to it, such action constitutes an irrevocable dedication of any street or passageway for public use shown or indicated on the plat. City of Sherwood, v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993). Title acquired by dedication to the public is an easement, with the fee remaining in the adjacent landowner. Ark. State Hwy. Comm’n v. Sherry, 238 Ark. 127, 381 S.W.2d 448 (1964). The public’s right to use a dedicated roadway extends to the whole breadth of it, not merely to the part that is constructed or actually traveled. Id. However, there is a statutory process for vacating a dedicated roadway in platted subdivisions located outside the limits of a municipality. See Ark.Code Ann. §§ 14-18-101 through 110 (Repl.2008).

The plain wording of Arkansas Code Annotated § 14-18-105 (Repl.1998) connotes that, where streets and passageways have been platted but never used or, if used at one time, have not been used for a period of five years, the county court is empowered to declare such passageways closed and vacated, if it finds those facts to exist:

In all cases where the owner of lands situated in a county and outside of a city of the first or second class or incorporated town has dedicated a portion of the lands as streets, alleys, or roadways by platting the lands into additions or subdivisions and causing the plat to be filed for record in the county and any street, alley, or roadway, or portion thereof shown on the plat so filed shall not have been opened or actually used as a street, alley, or roadway for a period of five (5) years, or where any strip over the platted lands, although not dedicated as a street, has been used as a roadway, the county court shall have power and authority to vacate and abandon the street, alley, or roadway, or a portion thereof, by proceeding under the conditions and the manner provided in this chapter.

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Bluebook (online)
290 S.W.3d 614, 104 Ark. App. 245, 2009 Ark. App. LEXIS 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weisenbach-v-kirk-arkctapp-2009.