Private landowners in Arkansas today often face the question, “Pig Trail or private road?” They are either challenged with providing easy access to adjoining tracts or excluding the general public from their property.
Aside from major federal and state highways, Arkansas recognizes two types of local roads the public may use in rural areas, “county roads” and “public roads.” The legal status of these roads is not as clear as they may first appear. County roads may be created the following ways: voluntary dedication, condemnation or having the county judge enter an order declaring a mail route or school bus route on the road. Each of these ways requires documentation in county records showing the existence of the road. If the county records don’t contain an order creating a road, then you must examine the road itself to determine whether or not it is public.
Unlike a “county road,” there is no need to have official documentation in the county clerk’s office to create a public road. The public acquires the right to use a road after using it for a period of more than seven years. Unlike a county road, public roads may also be abandoned by the public after seven years of nonuse. It’s important to note, however, if a private landowner maintains a locked gate, then the road will cease being public after seven years.
Determining the status of a road is a fact-intensive process. Establishing a county road can be a daunting task depending on how well the county’s records are maintained and indexed. Likewise, establishing a public road requires taking testimony from a parade of witnesses who have local knowledge of the road—possibly going back decades.
A landowner trying to establish a private road before an Arkansas court would need to show two things. First, that the county records lack any official documentation establishing that the road is legally a “county road.” Two, that the landowner has maintained a locked gate across the road for the past seven years, thus negating that the road is a “public road.”
If you succeed in establishing your road as a county or public road, not only will you gain access, but you may also be able to have the county maintain the road at no expense. If you want to keep your property private, you’d be well advised to maintain a locked gate across any roads and resist the temptation of allowing the county to regularly maintain your roads. By doing so, you’re running the risk of granting the general public the right to travel your roads.
Chase Carmichael is an attorney with PPGMR Law, a business-oriented law firm with offices in Little Rock and El Dorado. A resident of El Dorado, Chase’s practice focuses on appellate advocacy, trial litigation and insurance defense. For more information, visit ppgmrlaw.com
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