428 CADDO RIVER LBR. CO . V. RANKIN. [174 CADDO RIVER LUMBER COMPANY V . RANKIN. Opinion delivered June 13, 1927. 1. PRIVATE ROADS — INJUNCTION AGAINST INTERFERENCE.—In a suit by a lumber company to restrain the owner of land from closing a private road or interfering with the company's use thereof, evidence showing that use of the road had not been adverse held to warrant a denial of the injunction. 2. TRE SPASS — DAMAGES.—In a suit to restrain the owner from closing a private road or interfering with the use thereof by a lumber company, evidence held to justify the chancellor's finding that $100 would fully compensate the owner for damages to the land by the use of the road. 3. TRESPASS—EVIDEN CE — DAMAGES.—In a suit to restrain the owner from closing the road, or interfering with the use thereof by a lumber company, evidence held insufficient to justify an award of damages to the owner for injury to a spring on the land and for timber cut and removed. 4. HIGHWA YS— PRESUMPTION AS TO USE OF ROAD . — Where the public use a road across open and uninclosed lands without a court order, making it a public road, and without any attempt to exercise authority over it as a public highway, the p resumption is that the use is by consent of the owner of the land, and not adverse. Appeal from Montgomery Chancery Court ; Duffie, W. R. Chancelior ; modified. C. H. Herndon . and McRae & Tompkins, lant. for appel-J. R. Long, for appellee. MEHAFFY, J. The appellee was the owner of certain _land in Montgomery County, Arkansas, across which an old road ran, and the Caddo River Lumber Company, in carrying out its operations, used said road for about
ARK.] CADDO RIVER LBR. CO. V. RANKIN ,. 429 two weeks : in . hauling logs: .Appellee fOrbade them to use, the road further, and threatened to close the road. The, lumber company then brought suit to enjoin the appelle.e from ,closing the road or interfering with its use:of the.same: • • • . ".. The lumber company alleged in its complaint that, on .account . of. the -Ouachita 'River, it and,several :other residents in the community, had no other way of getting into any public highway without using the road and:crossing the lands •of • the appellee. There had- been .an old road across the land in question for more than 30.years, and the said road had been used..by the residents of the Qualls' land, the .Pike lands, and the . Martha Rankin lands, and the public, in . getting out to the Mount -Ida highway, and such. use of the road- had been open, notorious', adverse and: uninterrupted as against ;the ownerS of the lands traversed by the road, and, as a result of such long-continued.and adverse user, the resi-• dents of the farms in question and the public in general have acquired a right by:prescription. That, at the time the appellee forbade the company haulers to use the road further,the company had down in the woods adjoining defendant's land a large- • quantity -of . timber, for which it had no outlet other 'than *the: road in . question, and that, ithleSs it was permitted to use said road, its - down timber* would be a loss and its remaining timber would be of no value. That the use of the road did not damage the . lands. The defendant..demurred to the complaint,. which .demurrer 'was overruled 'by.the court... He then filed answer, and denied the long-continued and; adverse User of the road in queStion, and denied that it was the .only accesS•ble outlet to the -Mount Ida highway., Defendant alleged' that the uSe: of the road had at all times been permissive, and that the land through . which the road ran was open, wild, unimproved and uninclosed. The answer further alleged that the- compahy had, Without right, used said road with heavily loaded eight-wheeled Wagons . , to . defendant's damage -in the . sum of $225..
430 CADDO RWER BBR. CO . V. RANKIN. [174 Alleged that the use of the road chtmaged his lands, and that the company haulers stopped their teams and shod their mules near a certain spring, to his damage in the slim of $50, and that the haulers further damaged him in the sum of $25 by cutting and removing timber from his lands. • The chancellor found That . the road was private and not public, and that the use • had been permissive and not adverse, and . that defendant should have . judgment for $100 for damages caused by the use of said road, $25 for damages to the spring, and $8 for damages for timber cut and removed. The lumber company excepted and prayed an appeal to this court, which was granted. There is very little dispute about the testimony,. and we think it unnecessary to set it out in full. There was no controversy about the land through which the road ran being open, wild, unimproved and uninclosed. There is no testimony tending to show that the public or any one else had ever claimed any : adver g e right or any right at all against the objections of appellee. The road had been •there for Probably more than 30 years, and a few neighbors had been using the road, but not only the public, but those neighbors who used that road, so far as the proof shows, had never "claimed any right adverse to the owner of the land. The testimony showed - that the defendant had used five eight-wheeled wagons for about a week and that they later used thirteen wagons for about a week. The testimony also shows that.there was some damage resulting from. the use of the road, and, while there is no testimony that any • timber was cut -or used, there is testimony showing that small timber had been skinned and bruised, and also testimony showing that the road had been made wider and at one place the road had been changed about 25 feet from the old- road. We think the chancellor was clearly correct in holding that the lumber company • had no 'right to, use it again§t the objections of the' owner of the; land: Testi-
ARK.] CADDO RIA T ER • 1`.411R. CO: 'v: RANKIN. 431 molly shows •that the 40-acre . ttact of t land was...worth approximately $600,' , and practically . the only 'testimony With reference . to the amount of 'damages -was that , of the • plaintiff; Who • testified' that he • figtred , he had been damaged $300. But the evidence as to what was actuallY done shoWs 'that the damage Was rather slight, • and; 'from the testimony, there was very little damage . to the spring. In fact,, the proof . showed . that it would only have taken air hour or two • to clean •he spring - out; : and' the other damage • about Shoeingi Mules . close td the spring showS not only slight 'damage 'bUt • that the damage' could , be repaireefot . a . nOminal sum. - : Thete is nO testimony • in the record' showing the• amount : of damage , either done to the , sprini.or to. the timber, and; ,from the evidence in. the . ,case, we 'are , of the opinion 'that the , $100 awarded by the 'chancellor' for -daniage to land . is full compensation for all the l dainage done bY thelumber' company, and that there is no 'evidence-in 'the ..tecord .. as to the amount of daniage. done to the spring •or the. amount of damage to the . timber: • • •, • • It iS"Unnecessary to 'set ont the testimeny more fully.. We . thaVe ' . exarained' it all' carefully i. and are . thorOughly convinced that the chancellor was correct in finding that the 'use of the road had not 'been adverse, and that the appellee was entitled to an injiinction. This court has said in a case where the facts were very similar : "It is unnecessary to , set out more of the testimony. We have examined if 'all 'and are / thoroughly convinced that the finding ;of . the trial .coutt the effect that the use , of the roadway by the , public , had , not been. adverse hnt permisSive , is not .agaipst the . prePonderance of the evideuce. ' 7 . Brumley. v.. Statej . .83 . Ark., 236., 103. S. W.. 615. • • Aniong , other th , itigt . ' . we' SOZ1 :: *. „ . . " When 'the 'Public 'use a road running , thiongh .Open and unfenced lands, without anyptder ofthe county.court making it a.public road.and withoutany attempt towork it or .• exerei§e: ar athority Over' 'itt a§ a •"riublie...highikay,
the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent. When he needs the land, he . may withdraw his consent, fence the land, and exclude the public without violating the law." . • . In Sharp v. Mynatt, 1 Lea (Tenn.) 375, it is held, .(quoting syllabus) : . "Mere user by permission of landowner of a .way over his land cannot establish a right to a public way, unless such user is shown by facts and circinnstances showing the user by the public under a 'claim of right, and not simply by. permission, actual or tacit, of the owner. The fact that the road had never been worked, repaired, taken control of by the public, of oyerSeerS appointed, is an important element of evidence against such claim of . right, though not conclusive." Me'rrill Merecimtile Co. v. Nelms, 168 Ark. 46, 269 S. W. 563. • : There is no evidence in this case tending te show that there was ever any order of court making this a public road or any attempt to work it or exercise authority over, it as a highway, and there is no evidence either of facts or circumstances showing that the public used it under claim of right. The decree will therefore be modified and affirmed for OW. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.