Johnson v. Wylie

Steele Hays, Justice. By this appeal we are asked to determine whether the trial court abused its discretion in declaring Road No. 244 in Calhoun County to be a county road pursuant to Act 166 of 1983, and whether that act is unconstitutional. Road 244 is a gravel road running west from Highway 167 in Calhoun County. It is located for the most part on lands belonging to Calion Lumber Company and ends in a cul-de-sac at Champagnolle Creek, a feeder of the Ouachita River. The road serves some ten or twelve families, including John and Pauline Bean and the appellants, Jessie and Evie Lou Johnson. The Johnsons own lands at the turnaround, with the Beans having an easement. Disputes between the Beans and the Johnsons over the use of the road have resulted in two previous suits, the more recent terminating in this court on April 25, 1983. See Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983). In 1983 the Arkansas General Assembly enacted Act 166, amendingActs461and666of 1923 [Ark. Stat. Ann. § 76-104 et seq. (Repl. 1981)], giving county judges the discretion to designate roads used as school bus routes as county roads and obligating the county to maintain and repair roads having been so designated. In July of 1983, the county judge declared the road to be a county road and the Johnsons filed suit against him to set the order aside. The Chancellor held for the county judge upon a finding the road had been used as a school bus route for ten years or longer and had been maintained by the county for an equal period. He upheld the constitutionality of the statute. We affirm the decree. On appeal the Johnsons urge the order of the county judge was an abuse of the discretion given him under the act. We disagree with that contention. The argument is grounded on the fact that a number of individuals testified they did not want the road declared a county road, the exception being John Bean, whose objective was said to be the sale of his property. Appellants submit the taking was to further the interests of the Beans. Appellee admitted giving consideration to Bean’s request, but that cannot be said to be the only reason for his action. He said there had been problems over the use of the road for several years; that people had asked him why they couldn’t use the road if it was a route for the school bus. They complained of being stopped on the road and verbally abused. Appellee had discussed the problem with a mail carrier, the sheriff and a Hampton city councilman prior to his actions. He said he already regarded the road as being a county road, the only one he knew of serving as a school bus route which had not been designated as a county road. These factors, and more importantly, the prolonged use as a school bus route and the maintenance for many years by the county provide an ample basis for the appellee to have acted under the statute. The Chancellor’s finding that the appellee did not exercise his discretion improperly is not clearly against the preponderance of the evidence. ARCP Rule 52. The argument that Act 166 is unconstitutional is also without merit. Certainly under Article 2, Section 22 of our Constitution, private property may not be appropriated for public use without just compensation. But there was no taking here in the sense contemplated by the Constitution and the several cases cited by appellants. Where an owner permits what might otherwise have been a private road to be used as a school bus route for upwards of ten years and permits the county to repair and maintain the road for a comparable period, he cannot be heard to complain that his property has been taken without compensation. In effect, the declaration of public usage simply recognizes what his actions have already created by sufferance. Mr. Johnson conceded the school bus had used the road regularly and the county had applied gravel and used a grader on the road once or twice a year. Given the strong presumption in favor of the constitutionality of legislative enactments the Chancellor’s holding that Act 166 is not unconstitutional was not error as applied to the facts of this case. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Appellee submits that in our recent decision in Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984), we upheld the constitutionality of Ark. Stat. Ann. § 75-104 and 105 (Repl. 1981), which Act 166 amended. But constitutionality was not argued in Neyland. We held those sections were not intended to be literally construed to shorten the duration of seven years required for a prescribed easement to take effect, the adverse time lapse in Neyland being just over two years. We need not determine whether that same interpretation applies to Act 166, as the time element is undisputedly in excess of ten years, and the Act is dependent upon a circumstance not prescribed in § 75-104 and 105, i.e. the exercise of discretion by the county judge in declaring the road to be a county road. No doubt the duration of usage as a school bus route and the extent of maintenance by the county will have its influence on the exercise of such discretion in other cases. Clearly the county judge in this case was influenced by these factors. Appellant’s final argument that they are entitled to an injunction prohibiting entry to the road pursuant to the order is answered under the other points. The decree is affirmed. Hickman, J., and Hollingsworth, J., dissent. Purtle, J., not participating.