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AMANDA McNEELY AND BETTY POLK v. MARY C. JACKS

JUNE 03, 1988

AMANDA McNEELY AND BETTY POLK
v.
MARY C. JACKS, PAUL JACKS AND EDGAR JACKS



BEFORE HAWKINS, P.J.; ROBERTSON AND ZUCCARO, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today's is a song of a not so open road. It lies in rural Franklin County north of Meadville. It has no name. People once used it to travel to and from Union Church Road on the east and Oak Grove Road on the west. Everyone agrees the way was once in law a public road, though it was never formally so dedicated. The road was worked by the county as recently as 1972 or 1973.

 The Court below held that the road had been abandoned and had become a private way. The correctness of that ruling is the matter for decision on appeal. We reverse.

 II.

 A.

 The present chapter in the road's story begins in 1965. In that year Edgar Paul Jacks and Mary Jacks and their son, Edgar, acquired and moved onto lands through which most of the eastern half of the disputed road runs. See Map attached as Appendix. At that time the Fells family owned adjoining lands to the west. Years earlier the road had ceased being a thoroughfare all the way to Oak Grove Road, stopping instead somewhere near the Fells' home which was near the western end of the road. The Jacks argue that the road had become nothing but a driveway to the Fells' home.

 The Plaintiffs below - and Appellants here - are Amanda Anne Hewitt McNeely and Betty Wilhemina Hewitt Polk. They did not appear on the stage until 1980. Their father and representative is W.W. Hewitt, a Meadville attorney, who

 wears many hats, and is sufficiently prominent in this case about a road that we refer to Plaintiffs as the Hewitts.

 Back in the spring of 1973, the last member of the Fells family moved off the old Fells place, now the Hewitts' property. Percy Fells, who lives in Lincoln County, said he asked Paul Jacks "to watch it for us and try to help us." Jacks put a gate at the east entrance of the gravel road, where it met the Union Church public paved road. See Point 1 on the map. Jacks said he wanted to control his livestock.

 In 1974, Jacks leased the Fells' land, now owned by the Hewitts, and used it as pasture land. He fenced in the entire property, and put a gap across the road at Fells' west boundary line, Point 3. Around 1978, Jacks removed the gate at the Union Church Road and placed a gap to the east of the Price home, Point 2, well east of the Fells property.

 In 1980, W. W. Hewitt arranged the purchase of the 160-acre Fells tract and took title in the name of his two daughters. The elder Hewitt placed two iron gates on the by now not so open road, one at Point 2 and one at Point 3, replacing the wire gaps the Jacks had installed. Hewitt, Sr., tells of various things he has done with the land since 1980. Besides hunting on the property, Hewitt had 68,000 pine saplings set out. Firewood had been hauled off the property via the gravel road.

 Jacks continued to use his land to graze cattle. He installed the wire gap to control his cattle. He was also concerned with "pilfers" getting in and "with dogs killing cows" . Hewitt's explanation of why he installed the gate is

 I got tired of fooling with that barbed wire gap and I took the gate up there `cause I wanted to ...


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