{
  "id": 8722419,
  "name": "Albert N. ATTAWAY and His Wife Sarah ATTAWAY v. Hester DAVIS et al.",
  "name_abbreviation": "Attaway v. Davis",
  "decision_date": "1986-04-07",
  "docket_number": "85-294",
  "first_page": "478",
  "last_page": "481",
  "citations": [
    {
      "type": "official",
      "cite": "288 Ark. 478"
    },
    {
      "type": "parallel",
      "cite": "707 S.W.2d 302"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "238 Ark. 757",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1734242
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      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
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      ]
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    {
      "cite": "232 S.W. 930",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1921,
      "opinion_index": 0
    },
    {
      "cite": "149 Ark. 486",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8720850
      ],
      "year": 1921,
      "opinion_index": 0,
      "case_paths": [
        "/ark/149/0486-01"
      ]
    },
    {
      "cite": "229 S.E.2d 732",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
    },
    {
      "cite": "278 Ark. 142",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1748323
      ],
      "weight": 2,
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/ark/278/0142-01"
      ]
    }
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  "last_updated": "2023-07-14T22:45:27.788923+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Purtle, J., not participating."
    ],
    "parties": [
      "Albert N. ATTAWAY and His Wife Sarah ATTAWAY v. Hester DAVIS et al."
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nThis is a petition filed in the county court by the appellee, Hester Davis, to condemn a right-of-way giving her access from a public road to a landlocked 12-acre tract she bought in 1967. The county court appointed viewers, as required by the statute. Ark. Stat. Ann. \u00a7 76-110 (Repl. 1981). The viewers laid out a right-of-way running along the east side of the appellants\u2019 property, from the appellees\u2019 tract to Walnut Road. The circuit court upheld the county court\u2019s order. The Attaways appeal to this court under Rule 29(1 )(c).\nNo question is raised about the regularity of the proceeding in the county court nor about the constitutionality of the statute. See Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983). For reversal the appellants argue four points.\nIt is first contended that the circuit court should have sustained the appellants\u2019 plea of limitations. The appellee at first used an old trail across the Attaways\u2019 land and across another neighbor\u2019s land to drive to her property. In 1975 the Attaways put in a gate to obstruct that trail. After that the appellee walked to her land when she wanted to visit it. It is now argued that the five-year statute of limitations is a bar to this proceeding.\nThe circuit judge correctly concluded that no statute of limitations is applicable, because the appellee\u2019s right to obtain access arises from her status as a landlocked owner and is of a continuing nature. That was in substance the West Virginia court\u2019s reasoning in a similar case, its holding being summed up in this way: \u201cA way of necessity having been created by implication for the benefit of the grantee of the dominant estate or his successors thereafter, it cannot be extinguished so long as the necessity continues to exist.\u201d Berkeley Development Corp. v. Hutzler, 229 S.E.2d 732 (W. Va. 1976).\nAnother argument is that the appellee already has access to her property, because it has some frontage on Beaver Lake, a navigable watercourse. The statute, Section 76-110, does refer to access to a public road or navigable watercourse, but this law was adopted more than a century ago, in 1871. What the petitioner must show is a reasonable necessity for a road, not an absolute necessity. Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921). Now that travel even for short distances is almost always by motor vehicle, it is not reasonable to require the appellee and those wishing to visit her to make the trip by boat.\nThe appellants insist that they have been willing since 1975 to permit the appellee to reach her property by using a second trail that crosses their land and then another landowner\u2019s property. Any such use of neighboring property would be permissive and revocable. The appellee is entitled to obtain a permanent right-of-way by proceeding under the statute and paying what the viewers have fixed as reasonable compensation.\nA last argument is that the trial court should have admitted into evidence a sworn statement made by A.O. Clark, now deceased, who once owned all the land involved. The statement was apparently offered to show that Clark constructed a road which he intended as a means of access to various parts of the land. There is no showing that his subjective intent was carried into effect by the reservation of easements across the lands he sold. Consequently, his intent as disclosed by an ex parte statement is not material in the present dispute. Furthermore, Clark\u2019s attitude would not be helpful to the Attaways, for in the statement Clark was asked about a controversy he had with another landowner named Miller, about a gate, and he replied:\nI always told him if anybody wanted a road, I\u2019d tell them go ahead and make it. If you want a road over there, I\u2019ll give them the land. I would now, if somebody come out there and wanted a road. Fact of the matter you can go out there and ask them fellows building a house. They asked me what I\u2019d take for a road across the corner here so they can get in and out there, and I said I won\u2019t take nothing. You just build your road and it\u2019ll be our road and that\u2019s the way I was with that.\nThe statement was not admissible, not being subject to cross-examination, nor does it appear that the introduction of the statement would have affected the result in the case.\nThe appellee\u2019s motion to recover the cost of a supplementary abstract of the record is denied. Much of the added material was unnecessary. In that situation we do not sift the record to decide just what additional costs might be allowed. Ark. Foundry Co. v. Farrell, 238 Ark. 757, 385 S.W.2d 26 (1965).\nAffirmed.\nPurtle, J., not participating.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Williams, Kendall, Schrantz & Wood, P.A., by: Stephen Lee Wood, for appellant.",
      "James R. Jackson, for appellee."
    ],
    "corrections": "",
    "head_matter": "Albert N. ATTAWAY and His Wife Sarah ATTAWAY v. Hester DAVIS et al.\n85-294\n707 S.W.2d 302\nSupreme Court of Arkansas\nOpinion delivered April 7, 1986\nWilliams, Kendall, Schrantz & Wood, P.A., by: Stephen Lee Wood, for appellant.\nJames R. Jackson, for appellee."
  },
  "file_name": "0478-01",
  "first_page_order": 512,
  "last_page_order": 515
}