Appeals Court affirms judge’s decision on road use by farmer

A decision by Circuit Judge Rob Wyatt Jr., permitting a Jefferson County farmer to use a road that passes through the property of another person was affirmed Wednesday by the Arkansas Court of Appeals.

Gary Hass and his wife own the Willows, LLC and the Willows II, LLC. They appealed Wyatt’s order allowing Herbert B. Bogy and his wife access to the road, which is on property Hass owns.

Bogy and Hass each own adjoining pieces of farmland in Jefferson County, and access to a portion of Bogy’s property has long been accessed by a road that passes through Hass’s property.

According to the court document, Bogy, his family and tenants have used the road to move farming equipment to the southern part of Bogy’s property since 1972.

In 2008, Hass bought the adjoining property and in October 2011, he blocked Bogy’s access to the road.

Hass’s property is located on the west side and Bogy’s property is located on the east side, and the southern part of Bogy’s property is bisected, without crossings, by Union Pacific railroad tracks. The only way Bogy could get to the southern part of his property was to use a railroad crossing and road that begins on a highway west of Hass’s property and crosses it from west to east.

During a trial on the matter, Bogy testified that he bought his property in 1972 as an investment and leased it to a farming tenant, Bobby Frizzell, until 1988. Bogy and Frizzell testified that no one had given them permission to use the road.

From 1988 to 2000, Bogy leased the property to another tenant, Sam Morgan, and Morgan testified that he used the road to access Bogy’s property without permission until 1995, when he bought part of the land on which the road lies.

Morgan testified that Bogy asked him for permission to use the road, which he granted, but Bogy denied ever asking for permission to use the road, and Bogy also said he had made improvements to the road by installing a steel pipe.

Hass bought the property from Morgan in 2008.

After the trial, Wyatt ruled that Bogy’s use of the road from 1972 until 2011 satisfied the elements of a prescriptive easement, a decision Hass appealed.

“The circuit court found that for 39 years, Bogy had overtly and adversely used this land for access to the property, which entitled him to an easement by prescription,” Appeals Court Judge Rhonda K. Wood said in the court ruling. “There were no allegations that Bogy abandoned the easement and we will not overturn the circuit court’s credibility determination on appeal.”