Daily Development for Thursday, September 20, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; CREATION; IMPLIED; ADJOINING OWNERS:

When a county closes a public roadway, adjoining landowners may have continued rights of a private nature to use the roadway after the closure.

Tweedy v. Counts, 40 S.W.3d 328 (Ark. App. 2001)

This case presents a different twist on roadway closure matters. Here, a county, through a series of arguably bungled efforts, closed a number of county-owned public roadways within the county. There were problems with inadequate notice to the public of the roadway closures, improper identification of the roadway in question, and the lack of filing of a formal order for a number of years. But the problems will not be further detailed here, as the Court ratified the county's efforts in completing a legal closure of the subject roadway.

The subject roadway was a county road in a rural area opened in 1947 and finally adjudicated as closed by the county's order issued in 1995.

Appellants owned the real property on both sides of the road, while appellees owned the property into which the road ends. In 1994, prior to the county closure, appellants constructed a fence across the road which blocked access to appellees' property at the end of the road.

Appellees then brought this lawsuit, as their property is divided by a creek, making access to the rear portion of their property absent the former county road impossible without crossing the creek. Appellants asserted that the closure was lawful, as part of appellees' property is fronted by a blacktop road and asserted further that having appellees cross a creek afforded them sufficient legal access to their property.

Interestingly, in this suit, appellees did not assert an easement by necessity nor a reversionary interest in the former county road after closure. Instead, appellees sought the Court's affirmation of an independent, undefined continued right of use in the county roadway.

The Court accepted this argument, finding that appellees had a private right of use that differed from that of the general public in the roadway that was unaffected by public roadway closure.

It cited several other Arkansas cases which provide precedent in this matter. These cases found that abutting property owners' individual interests in the use of a public roadway for ingress and egress were vested and therefore were unaffected by public action, and set forth the precept that "an abutting owner has two distinct kinds of rights in a highway: a public right that he enjoys in common with all other citizens and certain private rights that arise from his or her ownership of property contiguous to the highway and that are not common to the public generally, and that is regardless of whether the fee of the highway is in him or her or not."

Appellees therefore prevailed in this case, regardless of the reversion of the ownership interest in the bulk of the closed county roadway in the appellants.

Comment: The editor has never seen this principle articulated in quite this way before. Of course, adjoining landowners always have rights of access to existing public roads, but this case takes that notion one step further and concludes that a right of way easement to the public creates permanent rights in other landowners adjoining the road at other points, even when the public road ends. The case cites as authority a prior Arkansas case and a 1958 Tennessee case, which in turn cites an earlier Washington case. The editor could find no mention of this kind of easement in the excellent treatise on easement law: The Law of Easements and Licenses in Land, by Bruce and Ely.

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