ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

CAROL MINYARD

APPELLANT

V.

PETER E. HABBE

APPELLEE

CA 00-1099

SEPTEMBER 19, 2001

APPEAL FROM THE

MONTGOMERY COUNTY

CHANCERY COURT, [NO. E-97-45]

HONORABLE GAYLE K. FORD,

CHANCERY JUDGE

AFFIRMED ON DIRECT APPEAL;

AFFIRMED IN PART AND

REVERSED IN PART ON CROSS

APPEAL

This case concerns the use and enjoyment of a remote rural roadway that traversed land owned by appellee Peter Habbe. The Montgomery County Chancery Court held that the roadway was a twenty-foot-wide public road. Appellant Carol Minyard sought a declaration that the roadway was public and a judgment for damages caused by appellee's attempts to prevent her use. Appellant appeals the court's denial of her claim for compensatory damages. Appellee resisted appellant's claims and asserted that the roadway was a private drive belonging to him but in which, he agreed, an easement by necessity existed that benefitted appellant. Appellee cross-appeals the order that declared the roadway to be a public road, that set the width of the road broader than was actually used, and that awarded appellant an attorney's fee. We affirm on direct appeal as to the chancellor's denial

of compensatory damages. On cross-appeal, we affirm the findings as to the establishmentof a public road, but we reverse as to the chancellor's finding that the road was twenty feet in width and as to the award of attorney's fees.

The standard of review of chancery cases is well-settled. Chancery cases are tried de novo on the record, but we do not reverse a finding of fact made by a chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). A finding is clearly erroneous when, although there is evidence in the record to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. With regard to findings of fact, we give due deference to the superior position of the chancellor to weigh the credibility of the witnesses. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000). We give no deference to a conclusion of law rendered by a chancellor because the chancellor does not have a better opportunity to apply the law than does the appellate court. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999).

Our de novo review revealed the following. The parties to this litigation are neighbors. Appellant's property is in Polk County. The main route of ingress and egress to appellant's property is via the roadway that runs across appellee's property situated in Montgomery County, and which at various times since the 1930's had been referred to as a U.S. Forest Road, County Road 5504, or Galaxy Lane (as denoted by the 911 system). The parties' lands are located nearby lands owned by the United States Forest Service.

The Forest Service and the Counties provided upkeep of the roadway pursuant to a cooperative agreement. Appellee purchased his 34.76-acre tract on August 6, 1987. In1991, appellant moved onto neighboring land in Polk County, bringing with her a ten-foot wide mobile home. Appellant decided that she wanted to move a new double-wide mobile home onto her land, but she could not traverse the land due to the abutting trees and the lack of sufficient width of the road. Each of the two halves of the mobile home are fourteen feet wide. In the meantime, appellee had been systematically placing a gate across the road for one twenty-four hour period each year, in what he called his attempt to keep the road a private drive that he was only permitting others to use. This caused discord between the parties.

Appellee filed suit to quiet title in himself, but he dismissed that suit voluntarily in January 1997. Appellant filed an action in March 1997 seeking (1) the declaration of a public roadway, (2) damages for costs associated with having to place her new double-wide mobile home on another parcel of land, and for costs associated with deterioration to vehicles that she attributed to appellee's failure to maintain the road or to his sabotage of the road, (3) damages for emotional distress suffered as a result of appellee's interference with her rightful use of the road, and (4) her costs and attorney's fees. An amended complaint was later filed in which she requested the same relief as (1) and (2) above, adding that the width of the road should be declared thirty feet; she did not request attorney's fees or costs in the amended complaint.

At the beginning of trial, appellee's counsel stated that his client agreed that an easement in appellant's favor was warranted. Appellant's counsel stated that his client had abandoned any claim of emotional distress; she was solely seeking the declaration of rightsin the road and consequential damages. What damages were warranted, if any, was a primary issue in the trial.

Testimony included that from the parties and from the Polk County Judge, who stated his belief that the road had "dual ownership" between the Forest Service and Polk County. He opined, though, that the road would have to be twice as wide as it was at present for passage of her mobile home. The Montgomery County Judge also testified, and he was of the opinion that the road was public. He observed that it was a narrow tract road, probably built by the Forest Service, and that it was at most fifteen feet wide. He had not, however, entered any order rendering the road a county road, and he recognized that the use had been more or less permitted over the years. He stated that appellant had approached him about widening the road and that he estimated it would require six to ten additional feet of width to accommodate her mobile home, which he would agree to do if all parties were in agreement on doing so.

Other testimony included that of a Forest Service Ranger, Bob Raines. Mr. Raines stated that the area in controversy was under his supervision as a ranger and that the Forest Service recognized the road as one belonging to the county, though it was basically for use by his organization. It fell under a cooperative agreement between the county and the Forest Service. Mr. Raines was approached by appellant about widening the road, and he authorized the marking of the road for that purpose, though it was never accomplished. Another man living down the road, John Aleshire, testified that he thought the road was a public one all of his forty-one years. A granddaughter of the original owners of theland, Ruth Ann Williams, testified that she was fifty-two years old, and as far back as she could remember, the road was public. Bob Brewer testified that he was ex-officio historian for the county, and his review of a 1936 map showed Road 5504, an unimproved roadway connecting Athens and Fort Smith. A 1980 map of the area demonstrated the existence of the road in the same place, noting that it was a Forest Service road maintained by the county.

Mr. Clarence Carhill testified on behalf of appellee, stating that he was familiar with the prior owners use of appellee's land. The prior owners had attempted to sell the property on a contract with an attached road easement survey, but the contract fell through. Thereafter the land was sold to appellee. Mr. Mervin Abbott also testified on behalf of appellee, and he thought the road was not public because the prior owners enjoyed the remoteness of the land and being surrounded by a national forest. Mr. Abbott thought that the posts and fencing indicated that this was private property.

At the conclusion of the hearing, the chancellor took the case under advisement. The February 25, 2000, decree setting the public road made the following findings, set forth verbatim:

5. That defendant has conceded the plaintiff has the right to an easement by necessity.

Both parties filed timely notices of appeal and cross-appeal.

Direct Appeal of Denial of Compensatory Damages

Appellant argues that the chancellor, while correct in determining that the roadway at issue is a public one and that appellee owed appellant attorney's fees and the costs of pursuing this litigation, clearly erred in failing to award compensatory damages to her. We disagree and affirm because the chancellor was not clearly erroneous in this conclusion.

Appellant asserts that all damages sustained by an injured or wronged party are compensable and that appellant should be made whole, i.e., she should be placed in the same position she would have been had the wrong not occurred. Appellant argues that the damages she sustained were not speculative but certain.

Appellant specifically requested reimbursement for the following expenses that she alleges are the direct result of appellee failing to maintain the road to her satisfaction and failing to widen the road: (1) the cost of relocating the mobile home, which was originally intended to be moved to appellant's property, in the amount of $7500; (2) the cost of replacing a fuel tank on her automobile in the amount of $122.62, which she alleged occurred due to appellee placing objects in puddles on the road to sabotage appellant's vehicle; (3) the cost of various repairs to an older mobile home, in which she had to residewhen she could not move the new mobile home onto her property, including the replacement cost of a pump and air conditioner in the older mobile home; (4) bulldozing work in the amount of $3200 in order to set up the mobile home; and (5) a $1000 loss taken on the sale of an S10 pickup truck, which she claims that she was required to purchase in order to traverse the rough road, which appellee failed to maintain.

Appellee counters by arguing first that even if the chancellor was correct in finding that appellee interfered and denied appellant the use of the road, none of the claimed damages arose as a consequence of appellee's acts or failure to act in the face of a duty to do so. Appellee points out that each item of claimed damages were for expenses voluntarily incurred after appellant filed suit, which appellant does not deny. Moreover, appellee states that every item of damage resulted from appellant's claim that appellee (1) refused to agree to expand the roadway or to cut trees; and (2) failed to properly maintain the road. Appellee then states that he had no duty to maintain his private road for her benefit, and that if it is truly a public road, then it is likewise not his duty to maintain it for anyone as it lies in the public domain.

Proof of damages has been found to be speculative when proof is based upon too many variables to make an accurate projection, Interstate Oil Supply Co. v. Troutman Oil Co., 334 Ark. 1, 972 S.W.2d 941 (1998), or they are based upon conjectural evidence or they are opinions of the parties or witnesses. Orsini v. Larry Moyer Trucking Inc., 310 Ark. 179, 833 S.W.2d 366 (1992). Damages must not be left to speculation and conjecture. Pennington v. Harvest Foods, Inc., 326 Ark. 704, 934 S.W.2d 485 (1996). The chancellor did not err in finding the damages speculative and non-compensable.

As to any damages alleged to flow from appellee's failure to maintain the quality of the roadbed, we agree with appellee that no damages could flow from such action or inaction. This was found to be a public road, and as such, appellee owed no duty to maintain the road to the specifications of appellant. The fact that it has been found to be a public road essentially nullifies any claim of responsibility as to its condition on the landowner upon whose land the road runs. Indeed, by analogy to a private easement, it is the owner of the dominant estate (appellant) who bears the responsibility to preserve an easement including necessary repairs and improvements. See Wilson v. Johnston, 66 Ark. App. 193, 990 S.W.2d 554 (1999).

As to the damage to appellant's vehicle and the alleged loss on the sale of a truck, we agree that appellant failed in her proof to demonstrate the existence of any alleged act of sabotage on the part of appellee. There is no proof that appellee placed items in the road bed to harm appellant's vehicles, other than appellant's belief that it occurred, which the chancellor was not required to accept.

Appellant premises the balance of her claim of damages on the fact that she could not move a 78 x 24-foot double-wide mobile home onto her property as planned. Appellee is not responsible for appellant's damages on this issue because even with the establishment of a public road, all evidence indicates that appellant would require a wider roadway than the existing roadbed, and even more than the twenty feet width found by the chancellor, tobe able to move the mobile home onto the land. Indeed, appellant has approached both county judges and the Forest Service in an attempt to widen the road. Generally, once the character of an easement is fixed, no material alterations can be made beyond that actually occupied. See id. Thus, we cannot say that the chancellor clearly erred in finding those to be speculative and non-compensable damages.

Cross-Appeal - Declaration of Public Road and Width Thereof

Appellee timely filed a notice of cross-appeal to the decree, and we address the substance of his first two arguments in the following discussion. Appellee argues first that the chancellor clearly erred in declaring the roadway public, and, second, that even if that finding was correct, the chancellor clearly erred in widening the road to a greater width than was actually used. We affirm the chancellor in his finding that a public road existed and that appellee's estate was subject to it. But, we reverse that finding setting the road at twenty feet in width because it is clearly erroneous.

When one permits the county to maintain and grade a road over many years and suffers public use during that time, his lands may be subject to that use as a public road if declared such. As Justice Hays wrote in Johnson v. Wylie, 284 Ark. 76, 78-79, 679 S.W.2d 198, 199 (1984), "[i]n effect, the declaration of public usage simply recognizes what his actions have already created by sufferance." Without reiterating the entirety of the evidence presented to the chancellor, it is clear that the United States Forest Service and neighboring landowners have used this passage across appellee's land for many, many years, having maintained its existence by County and Forest Service improvements. Proof of its long-termexistence is reflected in maps dating back to 1936. The chancellor did not clearly err in declaring that the subject roadway was a public road.

We do agree with appellee, though, that the width of this public road cannot be any greater than the actual roadbed that has been used by the public. All parties recognize that this is a one-lane passageway and that if opposing vehicles meet, one must yield or back up to permit the other to pass through. It is a general rule that once the character of an easement is fixed, no material alterations can be made to the physical conditions that are essential to the proper enjoyment of the easement except by agreement. See Baraclough v. Arkansas Power and Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). The holder of a prescriptive right may make use of that right "confined to the use made of it during the statutory period." See White v. Zini, 39 Ark. App. 83, 90, 838 S.W.2d 370, 374 (1992). The chancellor's decree is reversed, and we modify it to hold that the width of the roadway that is declared to be a public road is that which has been actually used as evidenced by its existing roadbed.

Attorney's fees

As part of his cross-appeal, appellee contests the award of $1400 attorney's fees to appellant in pursuing the litigation. Appellee does not contest the issuance of court costs. He concedes in his brief that the trial court possessed the authority to award such costs pursuant to Ark. R. Civ. P. 54(d) (2000), which states that costs shall be allowed to the prevailing party if the court so directs, unless a statute or rule makes an award mandatory.

Appellee presents his argument by acknowledging that the original complaint filed by appellant requested attorney's fees and costs in the prayer clause. However, appelleepoints out that the amended complaint did not include this prayer, and he asserts that the request was thereby abandoned, in the absence of a motion presented to the trial court at any later time. Appellee also concedes that he did not object to the trial court's entry of attorney's fees and costs after the decree was entered and that the general rule precludes the appellate court from reaching an issue on appeal that has not been brought to the attention of the trial court for a ruling. See Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993). Even so, appellee states that he had no opportunity or notice to object to the entry of such an award since it was done without warning and without a request, and more importantly, that the fees were granted in the absence of authority to do so. We agree that appellant was not presented with an opportunity to object to the trial court. See, e.g., Stevenson v. State, 25 Ark. App. 318, 759 S.W.2d 220 (1998). The general rule is that attorney's fees are not recoverable unless specifically authorized by statute. See Contintental Casualty Co. v. Sharp, 312 Ark. 286, 849 S.W.2d 481 (1993); Vera Lee Weaver Living Trust v. City of Eureka Springs, 62 Ark. App. 15, 969 681 (1998).

Appellant counters that there is such statutory authority granted in Ark. Code Ann. § 16-22-309 (Repl. 1999), which provides for such fees when a trial court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney. The statute reads:

We hold that appellee is not precluded from questioning the validity of the award of fees on appeal, and he may do so by requesting a de novo review of the question as to whether a justiciable issue existed below. See Stilley v. Hubbs, 344 Ark. 1, __ S.W.3d __ (2001); Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). If a justiciable issue is shown, then the trial court erred in awarding an attorney's fees. Our review reflects that the trial court erred because a justiciable issue existed.

While appellant is correct in stating that appellee stipulated that appellant had a right to use the roadway, there was still to be litigated the actual character of the roadway and whether any damages were owing to appellant. This case was not so undisputed that eachparty should not bear their own costs of hiring counsel. Furthermore, upon our review of the abstracted record, we find no request for fees from appellant's counsel under this statute or any other authority, and no finding by the trial court of a lack of a justiciable issue. The fee award is reversed.

Affirmed on direct appeal; affirmed in part and reversed in part on cross-appeal.

Bird and Vaught, JJ., agree.