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Turner v. Duke

April 06, 1999

FRANKLIN S. TURNER AND PATSY A. TURNER APPELLANTS
v.
GUY G. DUKE, DOROTHY DUKE ROBERTS, ANN DUKE ORGAN, FRANCES DUKE FONDREN AND SUE J. DUKE APPELLEES



Before McMILLIN, C.j., Diaz, And King, JJ.

The opinion of the court was delivered by: King, P.j.

DATE OF JUDGMENT: 6/19/97

TRIAL JUDGE: HON. JOHN C. LOVE, JR.

COURT FROM WHICH APPEALED: CARROLL COUNTY CHANCERY COURT

NATURE OF THE CASE: CIVIL - REAL PROPERTY

TRIAL COURT DISPOSITION: DECLARATORY JUDGMENT AND INJUNCTION IN FAVOR OF PLAINTIFFS

DISPOSITION: AFFIRMED - 4/6/99

¶1. The appellees [the Dukes] commenced this action by filing a complaint in the Chancery Court of Carroll County alleging that a road "known as the Duke Road" was a public road and requesting the trial court enjoin the appellants [the Turners] from blocking it and declare the Duke Road to be a public road. The Turners answered the complaint and counter-claimed for injunctive relief to authorize them to erect gates along the Duke Road and direct the Dukes lock these gates after them when traveling upon the Duke Road.

¶2. A trial was conducted on April 16, 1997. On June 19, 1997, the trial court entered a final judgment in favor of the Dukes that declared the Duke Road was a public road and enjoined the Turners both to remove gates they had erected to limit travel on the road and to direct them not to prevent the appellees or anyone else from using the road at will. The Turners assert the trial court erred in: 1) finding the Duke Road in question public by prescription, 2) they should be allowed to gate the entrances to Duke Road and 3) the proof fails to establish both entrances to Duke Road public.

FACTS

¶3. In 1994, the Turners purchased a tract of land which the Duke Road bisected between the northern boundary of the Turners' land and a second road known as Hilltop Road. The Turners constructed a house alongside the Duke Road, the enjoyment of which apparently was hampered by traffic. Consequently they constructed two gates along the Duke Road and mailed sets of keys to certain individuals. The Dukes contended that the Turners were selective in who received these keys, and not all of the appellees were permitted unfettered access through the gates. The present litigation then ensued.

¶4. Prior to trial, the parties stipulated that from 1980 until 1994 the Board of Supervisors' minutes reflected that the expenditure of funds to maintain the Duke Road had been approved in the claims docket. However it is also undisputed that the Board of Supervisors had not dedicated the Duke Road as a public road in its minutes.

¶5. Charles Campbell testified that in 1926 people working to maintain roads with mules had to camp alongside the roads where they worked, during that time he visited his brother who was employed in county road maintenance camped alongside the Duke Road.. James R. Roberts testified that he had traveled the Duke Road for seventy years, and his family had lived alongside it until 1928. Several witness, including Roberts, stated that the Duke Road had at one time run all the way from Hilltop Road which bounded the Turners' property to the Tioc Road. At some point part of this road fell into disuse, yet the portion which ran through the property of the Turner's and Duke's up to the Harper's property remained continuously in public use through 1994. Maxie Harper similarly testified that even after part of the Duke Road was no longer used, it still was used by his family to reach his brother's home. Other witnesses also testified that people currently living in houses accessed by the Duke Road receive mail services by mailmen who use the Duke Road.

ΒΆ6. Malcolm Campbell testified that sometime during the 1940's he drove a school bus along the Duke Road to transport children living there, and while doing so observed county personnel maintaining the Duke Road. Houston Campbell testified that he lived in a house alongside the Duke Road during the 1940's, and the county maintained the road at that time. He also stated that he had utilized the Duke Road from 1953 to 1986 to deliver butane and had met with no interference to traveling the road during that time. Guy ...


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