Jerry Riley v. First Baptist Church of Higginson
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOSEPHINE LINKER HART, JUDGE
DIVISION I
CA07-1234
May 14, 2008
JERRY RILEY
APPELLANT
APPEAL FROM THE WHITE
COUNTY CIRCUIT COURT
[NO. CV-2006-492]
V.
FIRST BAPTIST
HIGGINSON
CHURCH
OF
HONORABLE BILL MILLS, JUDGE
APPELLEE
AFFIRMED
Jerry Riley appeals from an order of the White County Circuit Court enjoining him
from building a private road on “Mills Street,” an unopened road that was designated on a
plat filed in 1899, that is situated between two lots owned by the First Baptist Church of
Higginson, hereinafter “the Church.” On appeal, Riley argues that the circuit court erred in
its findings of facts and conclusions of law when it decided that: A) William Earl Bogan and
Catherine Cora Bogan, husband and wife, who were the Church’s predecessors in title, held
title to lands over which a private road was authorized by the County Court of White
County on November 14, 2005; B) the Bogans’ mortgagee and holder of a deed of trust,
Advanta National Bank, held an interest in the land; and C) the holder of a deed of trust was
entitled to receive notice for the establishment of a private road pursuant to Arkansas Code
Annotated section 27-66-401 (Repl. 2004). He also argues that the trial court erred when
it issued a decree enjoining him from constructing the private road that was authorized by
County Court of White County. We affirm.
This is a case in equity involving the issuance of an injunction; therefore, our review
is de novo. See generally Ark. Game & Fish Comm’n v. Sledge, 344 Ark. 505, 42 S.W.3d 427
(2001); Clark v. Casebier, 92 Ark. App. 472, 215 S.W.3d 684 (2005). However, we review
the trial court's decision to award injunctive relief under an abuse of discretion standard, see
United Food & Comm. Workers Int’l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 120 S.W.3d
89 (2003), and we review the court’s factual findings leading to the issuance of the injunction
under the clearly erroneous standard. See Southern College of Naturopathy v. State, 360 Ark. 543,
203 S.W.3d 111 (2005); City Slickers v. Douglas, 73 Ark. App. 64, 40 S.W.3d 805 (2001). A
finding is clearly erroneous when, although there is evidence to support it, the appellate court,
upon viewing the entire evidence, is left with the definite and firm conviction that a mistake
has been committed. See Ligon v. Stewart, 369 Ark. 380, --- S.W.3d ---- (2007).
This case is unusual in that there is no testimony in the record. All we have before us
are copies of deeds, including the deed of trust granted by the Bogans to Advanta National
Bank; an order of the County Court of White County granting a private road to Riley; the
August 7, 2006 minutes of the Higginson Town Council Meeting in which Riley was
granted a twenty-foot easement to be added to the thirty-foot-wide private road that he
obtained from the White County Court; a copy of the plat for Hedrick’s Addition to the
Town of Higginson, filed for record on September 22, 1899; and four stipulations. The
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stipulations are as follows:
1. The real property which is the subject matter of this lawsuit is described on
a plat of Hedrick’s Addition to the Town of Higginson, Arkansas, which said
plat was filed in the White County Clerk’s Office in Plat Cabinet B Sleeve 5.
2. The City of Higginson has never accepted the street designated as “Mill
Street” as reflected by the said Plat.
3. The public has never used “Mill Street.”
4. The legal description over which defendants claim they have authority to
build a private road is described in a county court order filed November 14,
2005. (White County 2005-33).
All of the arguments made to the trial court were apparently contained in the parties’ trial
briefs.
In granting the permanent injunction against Riley, the trial court found that while
it could assume that the Bogans received actual notice of the county court proceeding and the
public received published notice because the county court order memorialized the Bogans’
attendance and referred to the published notice, there was nothing in the order to “indicate
notice to the holder of the Deed of Trust interest.” It concluded that “the holder of the
Deed of Trust would definitely have an interest recognizable under ACA 27-66-401,” and
due to the lack of notice, “any successors and assignees are not bound by the Order of the
County Court.” We note that the Church is a successor-in-interest to the holder of the deed
of trust.
Although Riley has listed four points on appeal, the crux of his argument
relative to the first three points is that, upon filing of the Hedrick’s Addition plat and the
subsequent sale of lots in relation to that plat, Mills Street was “irrevocably dedicated” to the
town of Higginson, and essentially, that dedication made the town the actual owner of all the
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land upon which his private road was granted. He contends that because of the dedication,
the stipulations were of no importance in this case; neither acceptance of the street by the
town nor lack of public use defeat the dedication. Further, citing the plain wording of
Arkansas Code Annotated section 27-66-4011, Riley contends that the holder of the deed of
trust was not entitled to any more notice than the public at large. We disagree.
It is settled law that a dedication is “the donation of land or the creation of an
easement for public use.” City of Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005).
However, it is also widely accepted that public rights accrue by some method of public
acceptance, which may be expressly given by representatives of the public or by the use of the
1
Arkansas Code Annotated § 27-66-401 provides:
When the lands, dwelling house, or plantation of any owner is so situated as
to render it necessary to have a private road from such lands, dwelling
house, or plantation to any public road or navigable watercourse over the
lands of any other person and the other person refuses to allow that owner
the private road, then it shall be the duty of the county court to appoint
viewers to lay off the road, provided the owner:
(1) Gives notice to such person twenty (20) days before application to the
court;
(2) Petitions the court;
(3) Shows necessity for the private road;
(4) Shows that the person refuses to allow the road; and
(5) Deposits with the clerk of the court sufficient money to pay all costs and
expenses accruing on account of the petition, notice, view, and survey of
the private road.
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property by the public. See Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221 (1917).
Here, we have neither public acceptance in the form of the city formally accepting the street
nor public use. Accordingly, the town possessed only the right to an easement, which it had
yet to exercise. Fuel Oil Co. v. Downs, 205 Ark. 281, 168 S.W.2d 419 (1943) (holding that
title acquired by dedication to the public is an easement, with the fee remaining in the
adjacent landowner); see also Arkansas State Highway Comm’n v. Sherry, 238 Ark. 127, 381
S.W.2d 448 (1964).
We note further that it is settled law that a deed of trust vests the holder with “naked
legal title to realty.” See Harris v. Collins, 202 Ark. 445, 150 S.W.2d 749 (1941). Therefore,
we hold that, contrary to Riley’s assertions, the plain wording of Arkansas Code Annotated
section 27-66-401entitled Advanta National Bank to actual notice as one of the “owners” of
the land referred to in the plat as “Mills Street.”
Regarding Riley’s remaining point, he argues that the circuit court erred in granting
the Church injunctive relief because the time to appeal from the November 14, 2005 County
Court order had “expired” without an appeal to circuit court. We do not reach this
argument, however, because Riley failed to get a ruling on it from the trial court, and
therefore, it is not preserved for our review. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d
224 (2006).
Affirmed.
HEFFLEY and VAUGHT, JJ., agree.
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