Did a Chicot County order or maintenance make Immigrant Road public, and what happens if a public road is blocked?

Plain-English summary

The Arkansas Game and Fish Commission asked about access to a proposed public boat ramp along Immigrant Road in Chicot County. It supplied a 2016 county court order accepting the road into the county system and said the county had maintained it since 1995. The AG considered whether the road became a county road or a public road by prescription.

For a county road, the AG identified dedication, condemnation, and designation by order as the three statutory methods. Based on the facts supplied, he concluded that Immigrant Road had not become a county road by condemnation or designation. He could not decide dedication because he had no facts showing whether a landowner donated the property or right-of-way. He also found that the 2016 order's road description was legally insufficient; a new order would be needed even if there was a proper donation.

For a public road by prescription, the AG said public travel must be open, continuous, and adverse, rather than permissive, for more than seven years. Maintenance alone does not establish that status. Whether the public's use meets the test is a factual question the opinion could not resolve.

If a road is public, the AG said a private party generally cannot obstruct public use, though rights may be asserted after abandonment. Available civil or criminal remedies depend on the facts.

What this means for you

County officials and the Game and Fish Commission

The 2016 order's description is insufficient, and a new order would be needed for a dedication route. The AG did not know whether a donation occurred. He ruled out condemnation and designation on the information supplied, while leaving the factual question of a public road by prescription unresolved.

Landowners and road users

The opinion does not determine Immigrant Road's final status or authorize a particular obstruction remedy. It says public use by prescription depends on evidence of open, continuous, adverse travel for more than seven years. The consequences of blocking a public road depend on the facts, including whether public use has been abandoned.

Common questions

Did the 2016 county order make Immigrant Road a county road? The AG said no on the record presented. He lacked facts about donation, and the order's road description was insufficient. A new order would be needed even if a donation had occurred.

Did county maintenance since 1995 make the road public?
Maintenance alone is insufficient. The AG could not decide from the supplied facts whether public use established a road by prescription.

Can someone block a public road?
Generally, the AG said a person cannot interfere with public use. He noted that a landowner may assert rights if the public abandons the road. Whether an obstruction is unlawful and what remedy applies depends on the facts.

Background and statutory framework

The opinion distinguishes county roads created under statutes from public roads arising by prescription. For county roads, it discusses donation under A.C.A. §§ 27-66-207–208, condemnation under §§ 14-298-101 et seq. and 18-15-201, and designation of specified routes under §§ 27-66-204–206. It cites Bowden v. Oates and Clark v. Readnour on road descriptions. For prescription, it examines the character and duration of public travel and explains why maintenance alone does not settle the issue. The opinion then discusses obstruction and fact-dependent remedies.

Citations

• A.C.A. §§ 27-66-204–208
• A.C.A. §§ 14-298-101 et seq.; 18-15-201
• Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970)
• Clark v. Readnour, No. CA07-108, 2007 WL 4328038 (Ark. Ct. App. 2007)
• Ark. Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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

Mr. Austin Booth, Director
Arkansas Game and Fish Commission
Opinion No. 2023-064
Page 2

                     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. 1 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
See, e.g., Ark. Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 321, 730 S.W.2d 474, 478 (1987) (differentiating between county roads and public roads by prescription); Ark. Att’y Gen. Ops. 2014-021 (noting the difference between county roads and public roads), 1989-135 (same). Mr. Austin Booth, Director Arkansas Game and Fish Commission Opinion No. 2023-064 Page 3

1. County roads. By statute, county roads—as distinguished from public roads by
   prescription—are made in one of three ways. 2
   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. 3 But the county must properly record the bill of assurance designating the county road. 4 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. 5 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. 6 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. 7 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

2
See, e.g., Lindsey, 292 Ark. at 321, 730 S.W.2d at 478; see also Ark. Att’y Gen. Op. 2014-021 (opining that Lindsey remains good law). 3 See A.C.A. §§ 27-66-207 (authorizing county judge to designate a county road when landowner donates the land or right-of-way to the public) and –208 (authorizing county judge to designate a county road when landowner deeds the underlying land to the public). 4 A.C.A. § 27-66-207(a).
5
The legal description contained in the Chicot County Order appears insufficient—the description is not definite enough “to be located from land records.” Bowden v. Oates, 248 Ark. 577, 591–92, 452 S.W.2d 831, 838 (1970). “[A]n insufficient description will invalidate a proceeding establishing a public road.” Clark v. Readnour, No. CA07-108, 2007 WL 4328038, at *1 (Ark. Ct. App. 2007). 6 See A.C.A. §§ 14-298-101 et seq. (condemnation procedures) and 18-15-201 (county eminent domain); Hinchey v. Taylor, 2015 Ark. App. 207, 5 (holding that, to create a county road, a county may condemn and pay for the right). 7 A.C.A. § 27-66-205 (mail routes); A.C.A. § 27-66-206 (school bus routes); see also A.C.A. § 27-66-204 (although not cited in Lindsey, a county judge may make a county courthouse route a county road). Mr. Austin Booth, Director Arkansas Game and Fish Commission Opinion No. 2023-064 Page 4

years, openly, continuously, and adversely to the private landowner. 8 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. 9 But road maintenance alone is not enough to make a road public. 10 Occasional or irregular county road work fails to meet the bar. 11 The prescription analysis is inherently fact intensive. 12 Because I am not a factfinder when issuing opinions, I must limit my response to questions of law. 13 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. 14 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,” 15 a landowner may lawfully assert his or her rights when the public abandons or loses the

8
McLain v. Keel, 135 Ark. 496, 498, 205 S.W. 894, 895 (1918) (citing Patton v. State, 50 Ark. 53, 62, 6 S.W. 227, 231 (1887). 9 Owners Ass’n of Foxcroft Woods, Inc. v. Foxglen Assocs., 346 Ark. 354, 364, 57 S.W.3d 187, 193 (2001) (“[W]hether a use is adverse or permissive is a fact question, and former decisions are rarely controlling on this factual issue.”). 10 Brooks v. Reedy, 241 Ark. 271, 276, 407 S.W.2d 378, 381 (1966) (“Grading a road every five or six years can hardly be classed as ‘maintaining a road’….”); Burley v. Bradley, 2021 Ark. App. 105, 7, 619 S.W.3d 49, 54 (holding that county road maintenance was insufficient when not “done with enough ‘sufficient regularity’….”).

See Craig v. O’Bryan, 227 Ark. 681, 684, 301 S.W.2d 18, 20 (1957) (“[T]he mere fact that the roadway 11

was occasionally worked by the county would not, of course, make it a county road.”). 12 See Ark. Att’y Gen. Op. 2003-174 (“[W]hether any prescriptive rights have been acquired is entirely one of fact.”). 13 See Ark. Att’y Gen. Op. 2007-243 (“That power is reserved…to the judiciary.”).
14
See Gazaway v. Pugh, 69 Ark. App. 297, 302–03, 12 S.W.3d 662, 666 (2000) (reviewing permissive use).
15
Lindsey, 292 Ark. at 321, 730 S.W.2d at 478–79 (citing Bengel v. City of Cotton Plant, 219 Ark. 510, 513, 243 S.W.2d 370, 372 (1951)). Mr. Austin Booth, Director Arkansas Game and Fish Commission Opinion No. 2023-064 Page 5

public road by allowing the landowner to erect a gate or similar barrier across the road for at least seven years. 16 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. 17 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 18 or injunctive relief 19 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. 20 There are several remedies for trespass, which can be civil or criminal. 21 Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

16
E.g., Weir v. Revo Trucks, 255 Ark. 494, 498, 500 S.W.2d 923, 926 (1957) (internal citations omitted); but see Wynn v. Hale, 227 Ark. 765, 766–67, 301 S.W.2d 466, 467 (1957) (concluding that a gate and cattleguard did not warrant removal when the gate and cattleguard were a “slight personal inconvenience….”). 17 See Howard W. Brill & Christian H. Brill, Obstruction of Highways and Roads, 1 ARK. LAW OF DAMAGES
§ 23:2 (citing multiple cases analyzing damages in road obstruction context). 18 See, e.g., Sullivant v. Clements, 180 Ark. 1107, 1108–09, 24 S.W.2d 320, 320–21 (1930) (affirming damages against person obstructing public road). 19 See, e.g., Jones v. Juanita S. Wood Family Ltd. Partnership, 95 Ark. App. 326, 332–33, 236 S.W.3d 573, 578 (2006) (“obstructing a public road, especially where it interferes with ingress and egress, [justifies] the issuance of an injunction….”). 20 See Langford v. Griffin, 179 Ark. 574, 577–78, 17 S.W.2d 296, 297 (1929) (special and peculiar harm).
21
See, e.g., Howard W. Brill & Christian H. Brill, Trespass on Real Property, 1 ARK. LAW OF DAMAGES
§ 30:6 (providing elements to civil trespass); A.C.A. § 5-39-203(a) (criminal trespass).