{ "id": 1705418, "name": "Brock v. Bates", "name_abbreviation": "Brock v. Bates", "decision_date": "1957-01-07", "docket_number": "5-1127", "first_page": "173", "last_page": "177", "citations": [ { "type": "official", "cite": "227 Ark. 173" }, { "type": "parallel", "cite": "297 S.W.2d 938" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "225 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642938 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/225/0177-01" ] }, { "cite": "223 Ark. 737", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650179 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/223/0737-01" ] }, { "cite": "223 Ark. 483", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650373 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/223/0483-01" ] }, { "cite": "218 Ark. 570", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1611965 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0570-01" ] }, { "cite": "217 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718507 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/217/0198-01" ] } ], "analysis": { "cardinality": 406, "char_count": 6729, "ocr_confidence": 0.536, "pagerank": { "raw": 2.309358119379234e-07, "percentile": 0.7882938348915323 }, "sha256": "145fcefeabe87fced8198cbd5d22f7de87703ef854466a735a60b735806b5fcf", "simhash": "1:6f83c545a91fb6d9", "word_count": 1206 }, "last_updated": "2023-07-14T16:33:25.767944+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Carleton Harris, C. J., not participating." ], "parties": [ "Brock v. Bates." ], "opinions": [ { "text": "Ed. F. McFaddin, Associate Justice.\nIn this suit \u2014 involving a roadway \u2014 the decree must be reversed because of a procedural point.\nAt the close of the plaintiffs\u2019 case, the Chancery Court sustained the defendant\u2019s demurrer to the plaintiffs\u2019 evidence and dismissed the complaint. Under the holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and other cases, the rule is that in passing upon such a demurrer the Court must give the evidence its strongest probative force in favor of the plaintiff and rule against the plaintiff only if such evidence, when so considered, fails to make out a prima facie case. In the case at bar, we believe that the plaintiffs\u2019 evidence, when so weighed, made a fact question requiring the weighing of evidence and the exercise of fact finding powers; and so we conclude that the decree should be reversed and the cause remanded, with directions to overrule the defendant\u2019s demurrer.\nAppellants, Jack Brock, et al., own lands, in Johnson County, that are located about one mile west of old Highway \u00d1o. 64, which runs in a general north and south direction. Appellee Bates owns the land west of and along the highway. West of the Bates land, Buddy Brock owns land; and then further west arc the lands of appellants. The road in question (called the Brock road) leaves old Highway No. 64 on appellee\u2019s lands and goes westerly through the lands of appellee and Buddy Brock to the house on appellants\u2019 lands about a mile west of old Highway No. 64. In 1955 appellee, Bates, erected and locked an iron gate across the Brock road where it leaves Highway No. 64. Appellants brought this suit in chancery to prevent the locking of the gate and the closing of the Brock road to the appellants.\nAppellants offered evidence designed to show: that the Brock road had been in existence for over sixty years; that the appellants and their predecessors in title had, during all that time, traveled the Brock road across the Buddy Brock lands and the appellee\u2019s lands to old Highway No. 64; that originally the Brock road continued on westerly through appellants \u2019 land to a boat landing on the Arkansas River; that the portion of the road from the appellants \u2019 lands to the river had been discontinued; that since about 1906 there had been a \u201cseasonal gate\u201d on the boundary line between the Buddy Brock lands and the appellee\u2019s lands, and, at another place on the Brock road, there had been a \u201cwire-gap-gate\u201d; that both of these gates had only been nsed about three months a year, and only to prevent cattle in the fields from going from one farm to another. It was also shown that the Brock road had never been dedicated as a State or County highway, but had existed by prescription for over sixty years.\nIn sustaining the defendant\u2019s demurrer, the learned Chancellor was of the opinion that the \u201cseasonal gate\u201d between the Bates land and the Buddy Brock land had existed since 1906 and had defeated the appellants \u2019 right to use the Brock road over the appellee\u2019s lands. But the appellants argued that even if the Brock road was not a public road under \u00a7 37-109 Ark. Stats., still the appellants and their predecessors in title had used the Brock road and acquired prescriptive rights long before 1906 and that the prescriptive rights once acquired could not be lost except by a continuous gate maintained for seven years; that neither the \u201cseasonal gate\u201d nor the \u201cwire-gap-gate\u201d was so maintained; and that thus the prescriptive rights over the Brock road had not been lost by reason of either the \u201cseasonal gate\u201d or the \u201cwire-gap-gate \u2019 \u2019.\nA decision by the Chancery Court required a weighing of the appellants\u2019 evidence to determine at least two questions: (a) had appellants\u2019 predecessors in title acquired a prescriptive right prior to 1906? and (b) had the \u201cseasonal gate\u201d or \u201cwire-gap-gate\u201d been maintained in such a manner as to cause appellants\u2019 prescriptive rights to be lost? In short, when we give full probative force to appellants\u2019 evidence \u2014 as we do under the rule of Werbe v. Holt \u2014 the said evidence was suffieient to require the exercise of fact finding powers and the determination of whether the said evidence should be believed or disbelieved. In this situation the demurrer to the evidence should have been overruled so the evidence could be weighed and the facts decided on the merits. Therefore, the decree is reversed and the cause is remanded, with directions to overrule the demurrer; and for further proceedings not inconsistent with this opinion.\nCarleton Harris, C. J., not participating.\nSome of the cases following and applying the rule of Werbe v. Holt are: Poynter v. Williams, 218 Ark. 570, 237 S. W. 2d 903; Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11; Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322; and McCord v. Robinson, 225 Ark. 177, 280 S. W. 2d 222.\nAs regards the Brock road and the \u201cseasonal gate\u201d erected about 1906, Mr. Cecil Barger, who, up until about 1950, lived on the lands that the appellee now owns, testified:\n\u201cQ. Was it ever stopped up to keep the public from traveling it?\nA. Not that I know of.\nQ. Did you stop it up ?\nA. No.\nQ. And you lived there until 1950?\nA. That\u2019s right.\nQ. Sometime back in 1936, or somewhere along in there, did you sign a petition to have that declared a County road?\nA. I signed it \u2014 let\u2019s see \u2014 yes, I signed that petition.\nQ. Did the County work that road?\nA. They did.\nQ. Until you left there, is that right?\nA. Yes, sir . . .\nQ. . . . That was on west of the house. It was a wire gap, wasn\u2019t it, or was it a gate?\nA. Which one?\nQ. Back over on the west there where you put it up.\nA. When I put it up, I put up a wire gate.\nQ. Was it what would be called a gap?\nA. That\u2019s right.\nQ. You didn\u2019t put a lock on it, did you?\nA. No.\nQ. You permitted everybody to use it?\nA. That\u2019s right.\nQ. Had no intention of cutting them off?\nA. No, nothing only that one time.\nQ. But you didn\u2019t do it then?\nA. No, and I wouldn\u2019t today.\u201d\nWe cannot find \u201cwire-gap-gate\u201d in the dictionary; but to farmers and others engaged in agricultural pursuits the meaning is clear: when there is a wire fence, the wires on one of the fence posts may be severed from the post and attached to a stake so that the stake can either be tied to the post to make a fence, or the stake and attached wires pulled away so as to leave an opening or gate between the two fence posts. The evidence showed that the \u201cwire-gap-gate\u201d was far less an obstruction to the road than the \u201cseasonal gate\u201d, and existed for a much shorter period of time.", "type": "majority", "author": "Ed. F. McFaddin, Associate Justice." } ], "attorneys": [ "L. A. Williams and Richard Motley, for appellant.", "Wiley W. Bean, for appellee." ], "corrections": "", "head_matter": "Brock v. Bates.\n5-1127\n297 S. W. 2d 938\nOpinion delivered January 7, 1957.\n[Rehearing denied February 18, 1957]\nL. A. Williams and Richard Motley, for appellant.\nWiley W. Bean, for appellee." }, "file_name": "0173-01", "first_page_order": 197, "last_page_order": 201 }