Posting for

     Friday, September 21, 2001

 

     by:  Bert Rush

     brush@firstam.com

 

     EQUITABLE SERVITUDES/EASEMENTS/PUBLIC ROADS/ABANDONMENT/TITLE UNDERWRITING

 

     An Arkansas Court of Appeals has held that upon closing of a public road, abutting landowners continue to have rights to use the road to access their property.  In so holding, the Court appears to recognize creation of an equitable servitude, without a finding of "necessity."

 

     The case is Tweedy v. Counts, 73 Ark.App. 163, 40 S.W.3d 328 (2001).  Here's what happened.

 

     The properties in question are located in rural Randolph County, AR.  The road in question was opened in Shiloh Township in 1947.  The road traverses land owned by Ronnie and Sarah Counts, providing access to land owned by Thornton and Diane Tweedy. 

 

     In 1990, proceedings were begun in Randolph County to close certain under-used roads so the county wouldn't have to maintain them.  As described by the Court's opinion, these proceedings were haphazard in the sense that public notices required for a formal abandonment of roads did not include reference to the road in question.  Instead, it appears the county published a map of 'open roads,' and declared that roads not shown on the map would be closed.  Residents were given an opportunity to object and, after a public hearing, the abandoned roads were considered closed.

 

     The Tweedys bought their land in March 1994, after the abandonment proceedings had begun, and apparently were deemed final, but before a court order had been issued to bless the abandonment proceedings. 

 

     In July 1995, a recently-enrobed judge finalized the abandonment proceedings by signing a nunc pro tunc order--effective retroactively to 1990 (apparently).  The Tweedys appealed this order, but their appeal was dismissed as untimely.

 

     Meanwhile, also in 1994, the Counts constructed a fence on the abandoned road--blocking access for the Tweedys to their land.

 

     In October 1997, the Tweedys filed suit in the County Chancery Court (a court with equitable jurisdiction), seeking an order that the subject road be declared a county road, a public road, or a private road--anything, to allow access to their property.

 

     After a hearing, the trial court ruled in favor of the Counts, holding that the subject road was legally abandoned, and the Tweedys had other reasonable access to their property.

 

     In fact, the Tweedys do have other access.  A far portion of their land fronts a public road known as "Black Ferry Road."  However, a creek runs through the Tweedy property, which, at times, makes access to that portion abutting the abandoned road difficult.  Whatever.  The Tweedys did not claim an easement by necessity.

 

     In any case, the Tweedys appealed the trial court decision, and the Court of Appeals affirmed in part and reversed in part.

 

     First, the Court held that the subject road was properly abandoned, and, second, that the nunc pro tunc order was legal and proper.

 

     But on a third issue, the question of whether the trial court erred "as a matter of law" in finding that the Tweedys' access was terminated by closing of the road, the Court held there was clear error, and it reversed the trial court decision.

 

     Citing the case of Paschall v. Valentine, 45 Tenn.App. 131, 321 S.W.2d 568 (Tenn.Ct.App. 1958), the Court said,

 

          "The general rule cited in Paschall is

          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 ownership of property

          contiguous to the highway and that are

          not common to the public generally, and

          this is regardless of whether the fee of

          the highway is in him or not.

 

             In the instant case, even though there

          was a valid road closing and Randolph

          County no longer has any responsibility

          for maintenance, (the Tweedys), as

          abutting property owners, still have a

          right to use the old road for ingress and

          egress to their property, and the (trial

          court) erred in finding otherwise."

 

     Comment:  What is this?  Is the Court recognizing an equitable servitude (or easement) here?  Seems (to me) the answer is "yes," even though the Tweedys aren't able to establish one of the traditional requirements for an equitable servitude:  Necessity.

 

     Here's what Prof. Pat Randolph had to say about this case on his DIRT listserv, yesterday:

 

          "The editor (Prof. Randolph) 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."

 

     Likewise, I find no mention of this kind of easement in the new Restatement (Third) of Property: Servitudes.  In fact, there's no mention in the Restatement of Paschall, or any of the cases cited by the Court in the Tweedy case.

 

     Is this an aberration?  Not sure, but for some reason this case is reminding me of the recent California case of Hirshfield v. Schwartz--which was the subject of our posting for 9/10/01.  In Hirshfield, it may be recalled, a court of appeals recognized rights for an encroaching neighbor, even though the neighbor couldn't establish elements of adverse possession.

**********

  Following Friday's posting, Jay Dobson (Portland, OR) writes:

 

     This result doesn't surprise me. I would expect the same sort of result here in Oregon, although maybe with a different rationale. It is common (almost universal) practice for a court here to reserve easements for utilities and access for property owners when a street is vacated. Indeed, it is almost impossible to get a vacation if some land owner is using the road. I suspect that if somehow a road got vacated, and someone could show they were using the road for their property, they would get a similar result here, although I suspect there would be an effort by the Court to establish some sort of de facto easement.