Young v. Bird

545 S.W.3d 223
CourtCourt of Appeals of Arkansas
DecidedFebruary 21, 2018
DocketNo. CV–17–432
StatusPublished

This text of 545 S.W.3d 223 (Young v. Bird) 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
Young v. Bird, 545 S.W.3d 223 (Ark. Ct. App. 2018).

Opinion

DAVID M. GLOVER, Judge

Marianne 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"1 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.

Litigation History

In 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 assigns.

Trial Testimony

According 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 *225amended 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.

At the 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.

Jimmy 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."

Marianne 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 December 2011.

Appellee 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.

Don 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 hours of the morning; and he had called the police three or four times because of noise and a vehicular incident.

Kimberly Darling testified that since the Birds bought the property, the difference in the traffic is significant. She said it has created a sense of a lack of security, and she has had trouble with encountering guests and customers on the road. She stated normal residential traffic up and *226down the lane might be half a dozen vehicles a day, but now there may be days when there are thirty, forty, or fifty vehicles traveling up and down the road. She acknowledged that level of traffic does not occur every day and that it could be for weekend events. She acknowledged that the majority of the events had probably on the weekends but that there were also times when there was weekday traffic.

At the close of Marianne's case, the Birds moved for a "directed verdict," which was granted by the trial court. The resulting decree was entered on February 17, 2017.

Standard of Review

Because this was a bench trial, the motion made should technically have been to dismiss, rather than for a directed verdict. However, both motions fall under Arkansas Rule of Civil Procedure 50(a) and are very similar in nature. In evaluating the nonmoving party's case, the trial court does not exercise fact-finding powers that involve determining questions of credibility or of the preponderance of the evidence. Swink v. Giffin , 333 Ark. 400, 970 S.W.2d 207 (1998) (quoting George Rose Smith in Brock v. Bates , 227 Ark. 173, 297 S.W.2d 938 (1957) ).

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Related

Rymor Builders, Inc. v. Tanglewood Plumbing Co.
265 S.W.3d 151 (Court of Appeals of Arkansas, 2007)
Swink v. Giffin
970 S.W.2d 207 (Supreme Court of Arkansas, 1998)
Mount v. Dillon
138 S.W.2d 59 (Supreme Court of Arkansas, 1940)
Brock v. Bates
297 S.W.2d 938 (Supreme Court of Arkansas, 1957)
Westlake v. Duncan, Dieckman, & Duncan Mining Co.
307 S.W.2d 220 (Supreme Court of Arkansas, 1957)
Arkansas State Highway Commission v. Hampton
423 S.W.2d 567 (Supreme Court of Arkansas, 1968)
Wallace v. Toliver
580 S.W.2d 939 (Supreme Court of Arkansas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
545 S.W.3d 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-bird-arkctapp-2018.