ARK.] HOLT V. CRAWFORD COUNTY. 1069 HOLT V. CRAWFORD COUNTY.' • inion delivered December 7, 1925.. 1. HIGHWAYS—ACQUIREMENT. BY PRESORTYTMN.—Eviderice • that la ' Toad was'eontinuously used by the public without . let or, hindrance for more than seven years with the knowledge of the landowner and :without any act on his part showing that the use Was permissive, hel , d sufffcient to' support a finding that the . tublic had acquired the road by •prescription. 2. EMINENT DOMAIN—OFFSET OF BENEFITS.—Where the public had a prescriptive right in an old road through a fortyracre tract, an application by the public for a new road parallel to the old one held an abandonment of the old road, and to warrant an offset of hefito against damages. 3. EMINENT DOMAIN—SURRENDER OF EASEMENT RIGHTs. Where the public had acquired prescriptive rights in a road which-the land-' . owner• was threatening to fence, application by the public for a new road parallel to the old one, was not such a surrender of the rights in the old road as would prevent .the offsetting of damages and benefitS, as the abandonment of the old and taking of ' the new amounted to: one transaction.
• 1070 HOLT V. CRAWFORD COUNTY. [169 4. EMINENT DOMAIN—SET-OFF OF DAMAGES.—The benefits accruing to an owner's land may be taken into account in assessing damages for taking land for•a public road. Appeal from Crawford Circuit Court; James Cod,- • ,ran, J . udge ; affirmed. Starbird & Starbird, for appellant. R. S. Wilson and Dave Partain, for appellee. . HUMPHREYS, J. . The only question presented by this appeal• for determination is whether the trial court; sitting as a jury, erred in refusing to allow appellant corn-pensation for building and maintaining a fence , on each side of the public road laid out through.his land on petition in the county court, and for the 'cost of an under-' -ground passage for hogs and .cattle to'pass from one side • of the road to the other in order to get water. •The trial court allowed appellant damages only for the land taken in laying out the road. The record reflects the following undisputed facts : the public had passed over the land for twenty-five or thirty years on a road west of a creek running through the land, which had not been worked by the road overseer ; the old road ran through land susceptible to cultivation, and part of it was bottom land; the land was an unfenced, wooded tract, which appellant decided to fence in) for a stock pasture after the passage of a , stock law, in that community, and, when he notified the public of that fact, they proceeded by petition in accordance with law'to lay out a road through the forty-acre tract on the hillside east of the creek. After the same was laid out, the public, used the new, instead of the old, road. The disputed issues of fact revealed by the record relate to whether the public had acquired the right to the old road by prescription, and whether the benefits growing out of the removal of a road from the west to the east side of the creek offset the damages to appellant's land resulting from taking the new road. On the first issue most of the witnesses testified that the old road had been used by the public generally for
.ARK.] HOLT V. CRAWFORD COUNTY. 1071 twenty7 five , or :thirty years without let or hindrance by appellant until , he .threatened to fence the tract through which it ran. , Appellant , himself testified that the old road had been used by his permission. , On the second, issne some of , the witnesses .testified that the benefits accruing to . appellant,'s land on , account of the removal of the road . exceeded , the damages :thereto on account of opening the new road. , The . court found against appellant On. both issues. . , . , contends for a reversal of the judgment offsetting, his damages with benefits because the public, had no prescriPtive rights, under .the law, in the old roa,d. In support of this , contention, he cites the case. of Brwptley v. State,.83 Ark.. 280, in which the rule was, announced that , where the. road .was used bY the public without an order of court through wild, unused land, the presump, tion is that , it was used, by permission or consent , of the owner of the lands. In the instant case, even if such a presumption exist'ed, it -was not conclusive, and might be overcome by facts and circunistances adduced in evidence. All the witness.es testifying upon the point, except appellant, testified that the road was 'continuously used by the public without let or hindrance for more than the statutory period of seven years, with the knowledge . of 'appellant, and without any act on his part, showing that the Use was , permissive.. This les . timeny, under the rule 'announced ;in theease of ,McCracken v. State, 146Ark. 300, is legally . sufficient on appeal to support.the:finding and verdiet of the court to the effect . that the public had aciviired the -Old road . by prescription. Appellant argues, however, that there is no evidence in the record tending to show an abandonment of the Old road, so that appellant could fence in the land through which it ran and thereby. derive 1 .a benefit from its uSe. The application by tbe public for a new road near and parallel to the 'old road thrOugh the same forty-acre tract on account of appellant's -threat 'to fence 'tip the land constituted an abandonment of the old road in exchange for the new road and warranted an offset of benefits against damages on
aceotint of the . exChange Of roads. .We 'think there iS• nothing in the suggestiOn of learned ceun g el for appellant that the abandonthent Of the old idad NvIaS in itself a' sur . tenclei of , its easement iights to'appellant in the sense that the public could net thereafter use th,e !benefits AOra: irig to apP'ellant as . an 'OffSet against-his damageS on account OCtaking the he* idad: Th0 bandonment of the 'Old 'road arid the taliii4u . fhe ne-vcyamoijnted ' tii' One transaction, and there is no good reason wh3? the benefits aCernini to the appellant in the exelihnge 'of the .t.oads could not be taken'into acconnt in asSessing bi g daMages. The 'kule.is ivell settled that, ih taking'priVate Pi'operty for pUblie 'Use, the benefits . accrning.tb , the oWneiN land maY 'be ' taken Into acCOUnt in . Measurink his 'damages.' Criba' v. fienedit; 64 Aik. '555; Sc6ti r.,Bridge D'istrict, , TNidem4er ' v. LittVlibdc, 157 Ark 52 . No etror apPearMg; the' judgutent iS affirmed.
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.