Before McMILLIN, P.j., Diaz, And Payne, JJ.
The opinion of the court was delivered by: McMILLIN, P.j.
DATE OF JUDGMENT: 07/19/96
TRIAL JUDGE: HON. ANTHONY THOMAS FARESE
COURT FROM WHICH APPEALED: CALHOUN COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: RULED THAT COUNTY HAD ABANDONED PUBLIC ROAD, GRANTED ATTORNEYS' FEES
DISPOSITION: REVERSED AND RENDERED -12/18/98
¶1. The matter before the Court is an appeal from a decision of the chancellor rendered in the Chancery Court of Calhoun County. The litigation involved a dispute over a property owner's right of ingress and egress across an adjoining parcel of real property. The chancellor held that a private easement had been established by prescription, but ordered that the owner of the subservient estate could re-route the easement to better accommodate the use of his land. The party seeking access has appealed that decision, claiming that the access was a part of the county's public road system and, thus, beyond the chancellor's authority to move. We agree and, therefore, reverse and render judgment in favor of the appellant.
¶2. The appellant, Ann May Enterprises, Inc. (hereafter "May Enterprises") is the present owner of a tract of real property in Calhoun County that is not touched by either of two paved public roads that presently traverse the area. However, the property is crossed by an unpaved road commonly known in the area as Winters Road, which connects the two paved roads. There was evidence that Winters Road was formally proclaimed as a public road by the board of supervisors by a minute entry made in 1943. Winters Road had two timber bridges needed to cross low-lying areas, and the proof is uncontradicted that both bridges became unserviceable quite a few years ago and were not repaired or rebuilt by the county. As a result, Winters Road became unusable as a means to cross over from one of the more frequently traveled roads in the region to the other.
¶3. The property owned by May Enterprises has never been occupied on a permanent basis; however, the owners always used the Winters Road route to gain access to the property when the need arose. There was evidence that the May Enterprises tract was, in the past, put to some agricultural use. For some time, the property has contained a recreational cabin used with some frequency by representatives of the corporate owner. The only access from the paved public road to the cabin and the remaining property is by Winters Road. This access is not hindered by the fact that the bridges are impassable since both bridges are located farther in on the road. The part of Winters Road used to access the May Enterprises property runs across a tract of land owned by the appellee, James Caples.
¶4. In 1994, Caples erected a barrier across Winters Road that prevented anyone gaining access to the May Enterprises tract. May Enterprises then commenced this litigation, claiming that Winters Road was a county road, thus making it unlawful for a private individual to bar use of the road. May Enterprises sought an injunction for the removal of the barrier. Caples filed a counterclaim, alleging that representatives of May Enterprises had committed numerous trespasses by their prior use of Winters Road to gain access to the May Enterprises tract. Caples sought an injunction prohibiting any further acts of trespass.
¶5. The chancellor found as a matter of fact that Winters Road had once been a public road. However, he concluded that, although there was no formal entry in the supervisors' minutes closing the road, there had been a de facto abandonment through non-use by the public and a failure by the board of supervisors to keep the road in repair for a period well in excess of ten years. The chancellor nevertheless found as a matter of fact that agents of May Enterprises and the predecessors in title to May Enterprises had continued to use the roadway as access to the May Enterprises tract since the road had ceased to be ...