Weisenbach v. Kirk
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ARKANSAS COURT OF APPEALS
DIVISION II
No. CA08-508
Opinion Delivered
JANUARY 7, 2009
RANDY WEISENBACH
APPELLANT
V.
LARRY and MELISSA KIRK
DEWAYNE and RHONDA SMITH
APPELLEES
APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT,
[NO. J-05-99]
HONORABLE KEVIN KING,
JUDGE
AFFIRMED
JOHN ROBBINS, Judge
This appeal arises from a circuit court’s vacation of a platted but unused section of a road
in a subdivision. For the reasons expressed below, we affirm the trial court’s decision to vacate
the road.
Appellees Larry and Melissa Kirk own Lot 23 in a subdivision platted in 1979 called
Rolling Hills Estates 2nd Addition, outside Pocahontas, in Randolph County. Appellees
Dewayne and Rhonda Smith own Lot 22 in that subdivision. Appellant Randy Weisenbach
owns property outside and adjacent to the subdivision. A portion of one of the dedicated streets
in appellees’ subdivision, Rolling Hills Drive, runs between their lots and ends at appellant’s
property line, to the north. Although this section of the road was dedicated on paper, it was
never constructed. Appellant purchased his property, which fronts on Johnson Church Road,
in 2004, and created and filed a plat of Rolling Meadows Subdivision there in March 2005. On
his plat, a street labeled “Paradise Trail” is laid out in such a way as to connect to the platted
north end of Rolling Hills Drive. Appellant asserts that his property “abuts” Rolling Hills Drive
because Paradise Trail and Rolling Hills Drive would connect, if they both were constructed.
Appellees take the position that appellant is not an abutting property owner in relation to the
unbuilt portion of Rolling Hills Drive or within the context of the statutory scheme by which
such dedicated streets may be vacated.
In January 2005, appellees filed a petition under Arkansas Code Annotated § 14-18-105
(Repl. 1998) to vacate this section of Rolling Hills Drive, alleging that it had never been used
as a road. Appellant filed an objection, arguing that he planned to develop his property as a
subdivision and connect Rolling Hills Drive, via Paradise Trail, to Johnson Church Road. The
county court granted the petition to vacate and appellant appealed to the circuit court. In
support of their petition, appellees presented the testimony of neighbors Alan Van Winkle, Tina
Sharp, Gary Barker, and Carolyn Lowell; former neighbor Bill Harper; appellee Larry Kirk; and
appellee Dewayne Smith. Their testimony was essentially that, before this dispute, people had
used the area for hunting, cutting hay, riding four-wheelers and motorcycles, and taking walks,
but had never used it as a road; that it had never been graded; and that no one had actual
knowledge that it had been platted as a road. Mr. Kirk testified that there were no ruts in the
field until appellant created some in January 2005.
Appellant testified that, like others, he had used the road before he owned his property,
while doing some work for the previous owners of his property. He described the area in
dispute as a grassy field road with a rut down one side. He stated that, when he purchased his
land, it was important to him that Rolling Hills Drive be a through street because he planned
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to develop a subdivision. Appellant presented the testimony of three former owners of his
property, Stanley Camp, Glendon Matthews, and David Matthews, to support his position.
The trial court entered its decision on January 22, 2008, stating:
3. The Court finds that even though the area was platted as a road no road bed,
culverts, or other features associated with a road were ever constructed or placed in the
area of the platted road.
4. The Court finds that Ark. Code Ann. § 14-18-105 and 106 do apply to this
situation and must be read together to determine the procedure to be used to petition
the County Court to abandon the road. The Court finds that the phrase “owner of all
lots and blocks abutting upon any street . . .” in Ark. Code Ann. § 14-18-106(a)(1) does
not require that all abutting property owners must join or consent to the action, but that
all are to be made parties to the action so that their voices may be heard by the County
Court requiring the request to vacate or abandon the road. The road [appellees] are
requesting to be vacated was not platted to benefit [appellant] and others in his addition
because the person who had the road area platted did not own the adjoining parcel of
property. The fact that the plat of [appellant’s] addition names the road something
different is evident of this intent to not have the road in question be a continuance of
said road.
....
6. The Court further finds that the road being vacated is not against the interest
of the public nor will it prevent ingress or egress to the lots of other property owners in
the area as is addressed in Ark. Code Ann. § 14-18-107(b).
7. The Court further finds that for more than five (5) years prior to the filing of
this action the use of the area platted as the road does not arise to such a use that it
would cause [appellees] to think that the area was in fact being used as a road. Such
occasional use of the area by an ATV or other vehicle does not in the Court’s mind
create notice that [appellant] or others are using the area as a road or using the area
against the interest of [appellees].
Appellant then pursued this appeal.
When an owner of land files a plat and thereafter lots are sold with reference to it, such
action constitutes an irrevocable dedication of any street or passageway for public use shown
or indicated on the plat. City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993). Title
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acquired by dedication to the public is an easement, with the fee remaining in the adjacent
landowner. Ark. State Hwy. Comm’n v. Sherry, 238 Ark. 127, 381 S.W.2d 448 (1964). The
public’s right to use a dedicated roadway extends to the whole breadth of it, not merely to the
part that is constructed or actually traveled. Id. However, there is a statutory process for vacating
a dedicated roadway in platted subdivisions located outside the limits of a municipality. See
Ark. Code Ann. §§ 14-18-101 through 110 (Repl. 2008).
The plain wording of Arkansas Code Annotated § 14-18-105 (Repl. 1998) connotes
that, where streets and passageways have been platted but never used or, if used at one time,
have not been used for a period of five years, the county court is empowered to declare such
passageways closed and vacated, if it finds those facts to exist:
In all cases where the owner of lands situated in a county and outside of a city of
the first or second class or incorporated town has dedicated a portion of the lands as
streets, alleys, or roadways by platting the lands into additions or subdivisions and causing
the plat to be filed for record in the county and any street, alley, or roadway, or portion
thereof shown on the plat so filed shall not have been opened or actually used as a street,
alley, or roadway for a period of five (5) years, or where any strip over the platted lands,
although not dedicated as a street, has been used as a roadway, the county court shall
have power and authority to vacate and abandon the street, alley, or roadway, or a
portion thereof, by proceeding under the conditions and the manner provided in this
chapter.
On appeal, appellant first argues that the trial court erred in vacating Rolling Hills Drive
because all abutting landowners did not join in the petition, citing Arkansas Code Annotated
§§ 14-18-106(a)(1) and 107(a) (Repl. 1998). Although we do not agree with the trial court that
section 14-18-106(a)(1) does not require all abutting property owners to join or consent to the
action, we affirm for another reason: as explained below, appellant was not an abutting
landowner within the meaning of that statute.
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Arkansas Code Annotated section 14-18-106 (Repl. 1998) states:
(a)(1) The owners of all lots and blocks abutting upon any street, alley, or roadway, or
portion thereof, desired to be vacated shall file a petition in the county court requesting
the court to vacate it.
(2) The petition shall clearly designate or describe the street, alley, or roadway, or
portion thereof, to be vacated, give the name of the addition in which they are located
and the date the plat was filed, and attach as an exhibit a certified copy of the plat.
(b)(1) Upon the filing of the petition, the county clerk shall promptly give notice, by
publication once a week for two (2) consecutive weeks in some newspaper published in
the county and having a general circulation therein, that the petition has been filed and
that on a certain day therein named the county court will hear all persons desiring to be
heard on the question of whether the street, alley, or roadway, or portion thereof, shall
be vacated.
(2) The notice shall give the names of property owners signing the petition, clearly
describe the street, alley, or roadway, or portion thereof, to be vacated, and give the
name of the addition in which they are located.
Arkansas Code Annotated section 14-18-107 (Repl. 1998) provides:1
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Arkansas Code Annotated section 14-18-108 (Repl. 1998) provides for an appeal:
(a) If the county court shall find that the petition should be granted, either in whole
or in part, it shall enter an order vacating the streets, alleys, roadways, or portions
thereof.
(b)(1) The finding and order of the county court shall be conclusive on all parties
having or claiming any rights or interest in the streets, alleys, roadways, or portions
thereof, vacated. However, an appeal may be taken to the circuit court and perfected
within thirty (30) days from the entry of the order, and an appeal may be taken from
the circuit court to the Arkansas Supreme Court and perfected within thirty (30) days
from the entry of the order of the circuit court.
(2) A certified copy of the order shall be filed in the office of the recorder of the
county and recorded in the deed records of the county.
(c)(1) The costs of the publication of the notice, the recording of the order, and the
court costs shall be paid by the petitioners.
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(a) At the time named in the notice, the parties signing the petition and any other parties
owning lots or blocks in the platted lands not abutting on the streets, alleys, or roadways,
or portions thereof, to be vacated or otherwise affected by the vacation shall be heard;
and the court shall determine whether the streets, alleys, roadways, or portion thereof,
should be vacated as proposed in the petition.
(b) No street, alley, or roadway, or portion thereof, shall be vacated if the court finds
that it would be against the interest of the public or that no means of ingress and egress
would be left to any lots in the addition not abutting on them, unless the owners of the
lots file their written consent to the vacation with the court.
We review issues of statutory construction de novo. Mamo Transp., Inc. v. Williams, __
Ark. __, __S.W.3d __ (Nov. 13, 2008). The basic rule of statutory construction is to give effect
to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule
is to construe it just as it reads, giving the words their ordinary and usually accepted meaning
in common language. Id. We construe the statute so that no word is left void, superfluous, or
(2) The court costs shall be paid by parties who unsuccessfully contest the petition.
Arkansas Code Annotated section 14-18-109 (Repl. 1998) addresses assessment of the
vacated road:
(a) The owners of all lots abutting on the streets, alleys, or roadways, or portions
thereof, vacated by an order of the county court, as provided for in § 14-18-108, shall
have the right to have reduced to acreage such lots and the streets or alleys so vacated
by petition to the county court where the property is situated.
(b) The county court shall promptly hear the petition and, upon proper showing that
it is signed by all of the owners, shall order that the lots and streets, alleys, or roadways
be reduced to acreage, and they shall thereafter be assessed as acreage for taxation of
all kinds.
(c) The petition may be included in the petition for the vacation of the streets, alleys,
or roadways, and the order may be included in the order vacating it, or the petition
may be filed and the order entered separately.
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insignificant, and meaning and effect are given to every word in the statute if possible. Id. When
the language of a statute is plain and unambiguous and conveys a clear and definite meaning,
there is no need to resort to rules of statutory construction. Id. However, we will not give
statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative
intent. Id. We strive to reconcile statutory provisions relating to the same subject to make them
sensible, consistent, and harmonious. City of Jacksonville v. City of Sherwood, __ Ark. __, __
S.W.3d __ (Nov. 13, 2008).
Although we construe section 14-18-106(a)(1) as requiring all abutting property owners
to join in the petition, the trial court reached the right result. We may affirm the trial court if
it is correct for any reason. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003). The
statutory scheme found in this chapter is focused upon the land included within the recorded
plat, not upon the property outside, or even contiguous to, the subdivision. Only dedicated
roadways that are within the platted addition or subdivision can be vacated pursuant to this
process. These statutes are primarily concerned with the rights of the owners who bought
property in reference to the plat. Section 14-18-106(b)(2) clearly contemplates that the property
owners signing the petition own property in the addition that contains the road to be vacated.
Appellant’s property does not front the vacated road and lies outside the subdivision. Therefore,
his ownership of Rolling Meadows Estates would not bring him within the terms of that
statute, and he did not need to sign the petition or consent to it. To hold that appellant is an
“abutting” landowner within the contemplation of these statutes and a necessary signer of the
petition to vacate, would lead to an absurd result contrary to the General Assembly’s intent. At
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most, appellant was entitled to an opportunity to be heard as a member of the public or “any
other part[y] . . . otherwise affected by the vacation,” and he was afforded that right. See Ark.
Code Ann. § 14-18-107(a).
In his next point, appellant argues that the trial court erred in finding that the road had
not actually been used for five years, which was a question of fact. We will not reverse the trial
court’s findings of fact unless they are clearly erroneous. Greenwood Sch. Dist. v. Leonard, 102
Ark. App. 324, __ S.W.3d __ (2008). It is obvious that the trial court credited the testimony
of appellees and their witnesses over that of appellant and his witnesses, and we cannot say that
this finding of fact is clearly erroneous.
Appellant further contends that the trial court mistakenly applied an adverse-possession
or prescriptive-easement standard in reaching its decision and in placing the burden of proof
on him. We disagree. The trial court’s statements about appellees’ notice of the platted road
and about using it “against [appellees’] interest” are irrelevant in light of the court’s sensible
construction of the statutes and the evidence supporting its findings of fact.
Appellant next argues that the circuit court erred in finding that it would not be contrary
to the interests of the public to close this road. The standard of review requires that we affirm
the circuit court's finding of fact regarding the interests of the public unless it is clearly
erroneous. See Greenwood Sch. Dist. v. Leonard, supra. Given the testimony about the potential
for increased traffic in Rolling Hills Subdivision, this finding was not clearly erroneous.
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In his last point, appellant contends that, even if the trial court was correct in vacating
the road, it erred in failing to recognize his independent right to ingress and egress, citing
Tweedy v. Counts, 73 Ark. App. 163, 169-70, 40 S.W.3d 328, 333 (2001), where we stated:
In the instant case, even though there was a valid road closing and Randolph County
no longer has any responsibility for maintenance, appellants, as abutting property owners,
still have a right to use the old road for ingress and egress to their property, and the
chancellor erred in finding otherwise.
Tweedy, however, involved closure proceedings brought under a different statutory process, and,
as discussed above, appellant was not an abutting landowner within the contemplation of the
statutes that are applicable here. Additionally, section 14-18-107(b) only preserves ingress and
egress rights to any lots in the addition not abutting the road to be vacated if they were left with
no means of ingress and egress. Appellant’s property is not included within this addition, and
he has other means of ingress and egress.
Affirmed.
B AKER and H ART, JJ., agree.
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