When does a country road in Arkansas become a public road, and what can a landowner do if someone blocks it?
Plain-English summary
The Arkansas Game and Fish Commission wanted to build a public boat ramp on the Mississippi River in Chicot County. Access to the proposed site depended on Immigrant Road (also called County Road 421). The AGFC asked the AG: is this actually a public road? The AG took the question apart into the two doctrines that control it.
Path one: county roads. Arkansas law recognizes only three ways a road can become a county road. (1) Dedication: a landowner donates the property or right-of-way to the county, and the county judge accepts by formally designating it; the county must then properly record the bill of assurance under A.C.A. § 27-66-207(a). (2) Condemnation: the county judge condemns and pays for the right-of-way under the eminent-domain statutes. (3) Designation: the county judge designates a mail route, school-bus route, or courthouse route as a county road by order under A.C.A. §§ 27-66-204 to 206.
The 2016 Chicot County Court Order failed each of these. The order recited county maintenance but did not say a landowner had donated the property. It did not condemn anything. And there was no indication Immigrant Road was a mail, school-bus, or courthouse route. The order also contained a legal description that was not specific enough to be located from land records, which the Arkansas Supreme Court in Bowden v. Oates called fatal to road-establishment proceedings.
Path two: public road by prescription. Even without county-road status, Arkansas recognizes that the public can acquire an easement by prescription if the public uses a road for travel, openly, continuously, and adversely to the private landowner, for more than seven years. The hard part: was the use adverse, or merely permissive? Owners Ass'n of Foxcroft Woods (an Arkansas Supreme Court case) calls this "always a question of fact." The AG cannot resolve fact questions in an opinion, so this question goes to the courts.
Note one important rule the AG flags: county maintenance alone does not establish prescriptive public use. Brooks v. Reedy held that grading every five or six years is not "maintaining a road," and Burley v. Bradley required maintenance to be done with sufficient regularity. So Chicot County's maintenance since 1995 is some evidence but not enough by itself.
Public roads can be obstructed, with remedies. If Immigrant Road were ultimately determined to be a public road, a private party generally cannot block it. The "limitations period for prescription does not run against the State," so a private landowner cannot quietly accumulate adverse rights against a public road by prescriptive easement. But there is a narrow window: a landowner can lawfully assert rights to a road if the public abandons or loses it (for example, by the landowner erecting a gate that goes unchallenged for at least seven years).
When obstruction happens, the courts can award monetary damages, grant injunctive relief, or order removal. There are also criminal trespass charges under A.C.A. § 5-39-203(a). The right remedy is fact-specific, but obstructing public road access "where it interferes with ingress and egress" is the kind of case the courts have repeatedly enjoined.
What this means for you
Counties and county judges
If you are accepting a road into your county system, do not rely on a court order that recites maintenance history. The legal effect of the order depends on which of the three paths you are using. For dedication, get a recorded deed or bill of assurance from the landowner that names the property donated and includes an acceptable legal description (one that can be located from land records, per Bowden v. Oates). For condemnation, follow the procedures in A.C.A. § 14-298-101 et seq. and § 18-15-201, including payment. For designation, confirm the road is in fact a mail, school-bus, or courthouse route. Re-do orders that lack a sufficient legal description; the underlying authority gap is fatal to road status.
State agencies acquiring access (like AGFC)
Before committing to a project that depends on access over a county road, get a current title opinion that confirms the road's legal status. A road label on Google Maps is not legal status. If the road is not yet legally public, your options are usually to (a) negotiate dedication of a clean right-of-way, (b) acquire an easement directly from the landowner, or (c) accept that the project depends on facts that may not be confirmable without litigation.
Rural landowners
If you have a country road across or near your land, the question of whether it is "public" can have material consequences. Ten years of casual neighbor use is generally not enough; the use must be open, continuous, and adverse for seven years. If you have always permitted use of your road as a courtesy, that is permissive use and does not ripen into a prescriptive easement. If you want to preserve your private rights, you can post the road, erect a gate, or send written notice that use is permissive.
If a county judge has issued an order purporting to take your road into the county system without your dedication, do not assume the order controls. The order can be challenged on the same grounds the AG flags here: missing dedication, condemnation, or qualifying designation.
Title examiners and real estate attorneys
This opinion is a useful checklist when you are running title on rural land where a road runs through or along the parcel. Pull the county-court order, look for a recorded bill of assurance, check that the legal description is sufficient under Bowden v. Oates, and consider whether the road's history actually supports prescriptive public-road status under the seven-year rule.
Property owners blocking access
If you are tempted to gate or obstruct what you think is a private road, get a legal opinion first. If the road has been used openly, continuously, and adversely by the public for seven years, you may face civil damages, an injunction to remove the obstruction, and possibly criminal trespass exposure. Even if the road is not yet a public road, county or affected-party litigation can push the question into court, and the cost will be yours either way.
Common questions
My county judge signed an order saying the road is a county road. Why isn't that enough?
Because Arkansas law lists exactly three paths to county-road status, and a generic acceptance order is not one of them. The judge needs (a) a dedication from the landowner that the order accepts (with a sufficient legal description), (b) a condemnation proceeding with payment, or (c) a finding that the road is a mail, school-bus, or courthouse route. Without one of those underlying facts, the order's recitation is not legally effective.
The county has graded and patched this road for 30 years. Doesn't that make it public?
Not by itself. Brooks v. Reedy and Burley v. Bradley hold that occasional or inconsistent maintenance does not establish a county road or a prescriptive easement. Even regular maintenance is only one element; the public's use must also be adverse to the landowner, not by permission, and continuous for at least seven years.
Who decides whether public use is "adverse" or "permissive"?
A court, after a fact-intensive inquiry. The AG cannot decide this in an opinion. If it really matters, the path forward is a quiet-title or declaratory-judgment action.
A neighbor put up a gate on what I thought was a public road. What can I do?
Several options, depending on facts. (1) Talk to the county or the prosecuting attorney; the road may still be a public road and the gate unauthorized. (2) Sue for injunctive relief and damages if you can show special or peculiar harm beyond what the general public suffers (see Langford v. Griffin, Sullivant v. Clements, Jones v. Juanita S. Wood). (3) If the gate is genuinely on private property and the road was never public, your options are limited. Get a title opinion before acting.
Can a landowner ever take a public road back from the public?
Yes, but it is hard. The public's prescriptive easement does not run against the State, but if the public abandons the road, a landowner can establish private rights, for instance by maintaining a gate or barrier across the road for at least seven years without effective challenge. Weir v. Revo Trucks describes the rule; Wynn v. Hale shows a slight inconvenience (gate plus cattleguard) is not necessarily an obstruction warranting removal.
The county's order has a vague description ("the road that runs by Smith's place"). Is that enough?
No. Bowden v. Oates requires the description be specific enough to be located from land records. Clark v. Readnour held an insufficient description invalidates the road-establishment proceeding entirely. The county will need to redo the order with a surveyed legal description.
Background and statutory framework
The opinion turns on two distinct doctrines: statutory creation of a county road, and judicial recognition of a public road by prescription. The Arkansas Supreme Court has consistently distinguished the two: see Ark. Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987) (a state-court decision; the Arkansas Supreme Court's reporter is the Arkansas Reports plus S.W.2d).
For county roads, A.C.A. §§ 27-66-204 (courthouse routes), 27-66-205 (mail routes), 27-66-206 (school-bus routes), 27-66-207 (donation), and 27-66-208 (deeded land) lay out the statutory paths. Section 27-66-207(a) requires a bill of assurance to be properly recorded.
For condemnation, A.C.A. § 14-298-101 et seq. governs the procedure and § 18-15-201 governs county eminent-domain authority. Hinchey v. Taylor, 2015 Ark. App. 207, confirms condemnation requires payment.
For prescriptive public roads, McLain v. Keel, 135 Ark. 496, 205 S.W. 894 (1918), citing Patton v. State, 50 Ark. 53, 6 S.W. 227 (1887), set the seven-year, open, continuous, adverse standard. Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 57 S.W.3d 187 (2001), made clear adverse-versus-permissive is "always a question of fact." Maintenance alone is not enough: Brooks v. Reedy, 241 Ark. 271, 407 S.W.2d 378 (1966); Burley v. Bradley, 2021 Ark. App. 105, 619 S.W.3d 49; Craig v. O'Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957). All of these are state appellate decisions.
For obstruction remedies, the opinion cites Sullivant v. Clements, 180 Ark. 1107, 24 S.W.2d 320 (1930) (damages), Jones v. Juanita S. Wood Family Ltd. Partnership, 95 Ark. App. 326, 236 S.W.3d 573 (2006) (injunctive relief), and Langford v. Griffin, 179 Ark. 574, 17 S.W.2d 296 (1929) (special or peculiar harm requirement). Criminal trespass is governed by A.C.A. § 5-39-203(a).
Citations
- A.C.A. § 27-66-207 (donation/dedication of road)
- A.C.A. § 27-66-207(a) (recording requirement for bill of assurance)
- A.C.A. § 27-66-208 (deeded land)
- A.C.A. § 14-298-101 et seq. (condemnation procedures)
- A.C.A. § 18-15-201 (county eminent domain)
- A.C.A. § 27-66-204 (courthouse routes)
- A.C.A. § 27-66-205 (mail routes)
- A.C.A. § 27-66-206 (school bus routes)
- A.C.A. § 5-39-203(a) (criminal trespass)
- Ark. Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 321, 730 S.W.2d 474, 478 (1987)
- Bowden v. Oates, 248 Ark. 577, 591–92, 452 S.W.2d 831, 838 (1970)
- Clark v. Readnour, No. CA07-108, 2007 WL 4328038, at *1 (Ark. Ct. App. 2007)
- Hinchey v. Taylor, 2015 Ark. App. 207, 5
- McLain v. Keel, 135 Ark. 496, 498, 205 S.W. 894, 895 (1918)
- Patton v. State, 50 Ark. 53, 62, 6 S.W. 227, 231 (1887)
- Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 364, 57 S.W.3d 187, 193 (2001)
- Brooks v. Reedy, 241 Ark. 271, 276, 407 S.W.2d 378, 381 (1966)
- Burley v. Bradley, 2021 Ark. App. 105, 7, 619 S.W.3d 49, 54
- Craig v. O'Bryan, 227 Ark. 681, 684, 301 S.W.2d 18, 20 (1957)
- Gazaway v. Pugh, 69 Ark. App. 297, 302–03, 12 S.W.3d 662, 666 (2000)
- Bengel v. City of Cotton Plant, 219 Ark. 510, 513, 243 S.W.2d 370, 372 (1951)
- Weir v. Revo Trucks, 255 Ark. 494, 498, 500 S.W.2d 923, 926 (1957)
- Wynn v. Hale, 227 Ark. 765, 766–67, 301 S.W.2d 466, 467 (1957)
- Sullivant v. Clements, 180 Ark. 1107, 1108–09, 24 S.W.2d 320, 320–21 (1930)
- Jones v. Juanita S. Wood Family Ltd. Partnership, 95 Ark. App. 326, 332–33, 236 S.W.3d 573, 578 (2006)
- Langford v. Griffin, 179 Ark. 574, 577–78, 17 S.W.2d 296, 297 (1929)
- Ark. Att'y Gen. Ops. 2014-021, 1989-135, 2003-174, 2007-243
Source
Original opinion text
Opinion No. 2023-064
October 18, 2023
Mr. Austin Booth, Director
Arkansas Game and Fish Commission
2 Natural Resources Drive
Little Rock, Arkansas 72205
Dear Director Booth:
I am writing in response to your request for my opinion on questions concerning the legal
designation of a road in Chicot County.
You indicate in your opinion request that the Arkansas Game and Fish Commission
("AGFC") intends to build a public boat ramp on the Mississippi River. To that end, the
AGFC has scouted suitable riverfront land, and some landowners have expressed interest
"in providing riverfront land for that purpose…." This land borders a road, variously called
County Road 421 or Immigrant Road. You seek clarity as to Immigrant Road's legal status
or designation as a public road because "the feasibility of the proposed boat ramp depends
on [the AGFC] and the public having a legal right of vehicular access to and from the
proposed site along Immigrant Road[.]" Attached to your opinion request are the following
two exhibits:
Exhibit A—Map. Exhibit A is a Google map image. You state that Exhibit A
identifies Immigrant Road as "County Road 421…a designated public road."
Exhibit B—County Court Order. Exhibit B is a December 15, 2016 Chicot
County Court Order by the County Judge ordering and approving that "Immigrant
Road be accepted into the Chicot County Road System with the normal 30[']
right of way in order to properly maintain the road which has been done by Chicot
County since August 24, 1995."
You have asked the following four questions:
1. Was the attached December 15, 2016 Chicot County Court Order No. CC16-28
(Exhibit "B") sufficient to accept Immigrant Road (as described therein) into the
Chicot County Road System and make it a public road?
Brief answer: No, because the Arkansas Code requires that the landowner have,
first, donated the property to the county. I have not been presented
with any facts on whether a donation occurred. And, second, the
Chicot County Court Order contains an insufficient legal description
of the road.
2. If Chicot County has maintained Immigrant Road since August 24, 1995, as stated
in the County Judge's Order, is that sufficient to make Immigrant Road a public
road?
Brief answer: As explained below, this is a highly factual question that cannot be
resolved in an Attorney General opinion.
3. If Immigrant Road is a public road, may a private party who (by virtue of a deed,
easement, lease, or other instrument) asserts an interest in the property underlying
the public road legally block or interfere with the use of the road by the
Commission, the public, or the other landowners along the road?
Brief answer: Likely not. Generally, a person cannot block, obstruct, or otherwise
interfere with the public use of the road. But a landowner may
lawfully assert rights to a road when the public abandons the road.
4. If such a private party does block or interfere with the use of a public road, what
remedies are available to an affected user of the road?
Brief answer: The sorts of civil and criminal remedies available for unlawful
obstruction or trespass wholly depend on the facts at hand.
DISCUSSION
Question 1: Was the attached December 15, 2016 Chicot County Court Order No. CC16-
28 (Exhibit "B") sufficient to accept Immigrant Road (as described therein) into the
Chicot County Road System and make it a public road?
Question 2: If Chicot County has maintained Immigrant Road since August 24, 1995,
as stated in the County Judge's Order, is that sufficient to make Immigrant Road a public
road?
Apart from federal highways, state highways, and city roads, Arkansas law generally
recognizes two types of rural roads subject to public use: county roads and public roads by
prescription. Immigrant Road only becomes a county or public road by one of the three
ways to create a county road or by the existence of a public road by prescription. I will
assess each in turn.
1. County roads. By statute, county roads, as distinguished from public roads by
prescription, are made in one of three ways.
Dedication. In the first method known as "donation" or "dedication," a landowner first
donates (or "dedicates") property or a right-of-way to the county, and then the county judge
accepts that donation by formally "designating" the property or right-of-way as a county
road. But the county must properly record the bill of assurance designating the county
road. Here, you have not indicated whether someone dedicated the property or a right-of-
way for the road. If that did not occur, then the road cannot be considered a county road
yet. Regardless of whether the donation was made properly, a new county court order
would be needed because the 2016 Chicot County Court Order contains a description of
the road that is legally insufficient.
Condemnation. In the second method, a county judge creates a public road by condemning
and paying for the property or right-of-way under statutory law and constitutional law.
But based on the information provided in your opinion request, Immigrant Road did not
become a county road by condemnation.
Designation by Order. In the third method, a county judge designates by order a mail or
school bus route a county road. But based on the information provided in your opinion
request, Immigrant Road is not a mail or school bus route.
Therefore, based on the facts available to me, Immigrant Road has not become a county
road by condemnation or designation. And whether the road has become a county road by
dedication depends on facts that are not available to me.
2. Public roads by prescription. Unlike the creation of a county road, the public acquires
an easement by prescription when the public uses a road for travel for more than seven
years, openly, continuously, and adversely to the private landowner. To successfully
establish a right by prescription, a person must prove that public use of the road is adverse
and not permissive, which is always a question of fact. But road maintenance alone is
not enough to make a road public. Occasional or irregular county road work fails to meet
the bar.
The prescription analysis is inherently fact intensive. Because I am not a factfinder when
issuing opinions, I must limit my response to questions of law. Consequently, I am unable
to determine whether Immigrant Road is a public road by prescription.
Question 3: If Immigrant Road is a public road, may a private party who (by virtue of a
deed, easement, lease, or other instrument) asserts an interest in the property underlying
the public road legally block or interfere with the use of the road by the Commission, the
public, or the other landowners along the road?
When a road is a public road by prescription, in contrast to a county road by one of the
statutory methods above, a person who blocks, obstructs, or otherwise interferes with the
use of a public road often does so adversely and hostile to the prescriptive easement. Then
the key question is whether a person's actions are adverse or permissive.
Although private parties cannot customarily acquire a prescriptive right to a public road
"because the limitations period for prescription does not run against the State," a
landowner may lawfully assert his or her rights when the public abandons or loses the
public road by allowing the landowner to erect a gate or similar barrier across the road for
at least seven years.
Question 4: If such a private party does block or interfere with the use of a public road,
what remedies are available to an affected user of the road?
Criminal and civil remedies are available for unlawful obstruction and trespass. It is up
to a court to determine the appropriate remedies based on the nature of the obstruction. For
obstruction, a court may award monetary damages or injunctive relief against a person
who obstructs a public road and causes "special or peculiar damage" to another which is
not the same harm suffered by the general public. There are several remedies for trespass,
which can be civil or criminal.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General