# Craig v. O'BRYAN > Supreme Court of Arkansas · April 15, 1957 · 227 Ark. 681 URL: https://www.frixlaw.com/law-library/cases/9641677 ## Case - **Full name:** Craig v. O’Bryan - **Court:** Supreme Court of Arkansas - **Decided:** April 15, 1957 - **Citations:** 227 Ark. 681; 301 S.W.2d 18; 1957 Ark. LEXIS 472 - **Precedential status:** Published - **Opinion:** Dissent by Ward - **Judges:** Harris, Ward - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641677 ## How later opinions describe it (automated extraction) - reversing the lower court’s establishment of a public easement, in part, because while there was evidence that the roadway had been used for some thirty years, none of the witnesses testified to seven years of consecutive or continuous use ## Opinion text Paul Ward, Associate Justice (dissenting). I do not agree with the majority opinion in the following particulars : One. The chancellor held that appellees had acquired a road by prescription. I would affirm that holding. Where the public uses a road across unoccupied and unenclosed land, there is a presumption the usage was permissive. See Nelms v. Steelhammer, 225 Ark. 429 , 283 S. W. 2d 118 . There is a good reason for such a presumption, because the owner of the land might not know of the usage. Such presumption does not arise where the land is occupied or cultivated, as here. The majority, in reversing the chancellor on this point, feel that no continuous usage for seven consecutive years was shown by the testimony. But as I view the testimony, the chancellor was justified in finding that the public, and appellees in particular, had used the road continuously for more than 50 years. Since the undisputed proof shows that appellees had no other road to and from their farms, and since appellants themselves admit the road has been in use for some 30 years, it would be preposterous to presume that the road ivas not used for a period of seven consecutive years. Joe Price, employed hy the Pulaski County Road and Bridge Department, testified that he had been familiar with the road since 1935 and that the County had been working the road occasionally since that time. Sherman Abraham had been familiar with the road for 25 years, and knew the general public used it. Lillie Garrett knew the road was old in 1930 and that the general public used it. Witness Dortch stated that the road had been in existence within a few feet of where it is now for a period of at least 50 years. One of the appellants testified that the road had been there for 100 years. It seems to me that the above testimony (and there is much more) is ample to sustain the chancellor’s finding on the period of usage. This is especially true since there is no testimony that there was any 7 year gap in the usage. If appellants thought there was any such gap they should have brought it oui on cross examination or by direct testimony. Under the above factual situation, it is my considered opinion that the trial judge in this case correctly followed the rule laid down by this court in the case of Fullenwider v. Kitchens, 223 Ark. 442 , 266 S. W. 2d 281 , 46 A. L. R. 2d 1135, where, in dealing with a similar state of facts, we said: ‘ ‘. . . the road has been used by appellee and the public openly and adversely for more than 7 years and (that) the constant usage of said road for some 40 years under the circumstances of this case overcomes the presumption that said usage was permissive.” In the cited case the road was over unenclosed land and therefore the presumption of permissive use attached, but in the case under consideration of course no such presumption attached. See also Stoker v. Gross, 216 Ark. 939 , 228 S. W. 2d 638 . Two. In my opinion the majority have announced the wrong rule by which appellants and appellees must hereafter settle their differences. As I understand the majority opinion it lays down this rule: Appellees can maintain the road as long as they do not increase the hnrden on appellants. It is not necessary to enter into a discussion of what constitutes a “burden”, because I am concerned here only with a rule or principle. The rule which I think this court should apply, and which I think is approved by the decisions cited by the majority, can be stated, in effect, as follows: Appellees have a right to make such repairs, and only such repairs, on the road as are reasonably necessary to insure its use. In other words I would make the use. of the road, and not the burden on appellants, the criterion. The difference in the two rules may seem slight, but I think it is fundamental, and that it could lead to quite different results. For example: If digging a one foot side ditch along a portion of the road was found to be necessary in order to make the road usable, it would not be allowed, under the majority rule, if it was found to be an extra burden on appellants. This could, in effect, deny appellees the use of the road entirely. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641677. Public record. Not legal advice.