For a complete study of this I highly recommend that you print it out. The twists and turns of this one example are helpful for future reference as new issues arise.
There is a strong possibility that a "new Alamo" has arisen, and
from behind these walls the battle will spread into Arizona/New
Mexico, and the mining by Peabody Coal that is also disintering skulls
There could also be international repercussions, as Peabody sold its interests to a British company.
This is a landmark case, and the key to this is found in the
final decision of the Court of Appeals of Arkansas. Click on "common sense."
Developments After the March 15 Ruling.
Manataka American Indian Council
Well, somebody said it for me. This is exactly what the Four Corners Clamor is about. I am not Native American Indian and many of the issues presented in the Clamor would not be considered to be related to my life, beliefs, religion, or well-being.
Some may even say that I am talking about things that are none of my business.
So here is a quote from a man who is trying to protect an Arkansas burial site from desecration.
And here is what is happening in Arkansas.
The road is built in the wrong place - not on the land sold to AGFC.
Gazaway said he built a fence across the road in 1994 and charged an annual $40 entrance fee when he discovered American Indian artifacts and human remains on his property. Julie Morrow, an Arkansas State University archaeologist, conducted minor excavations at Gazaway's property and discovered what she said was likely an Indian settlement under his land.
AGFC Assistant Director Scott Henderson says the boat ramp and portion of the road leading to it belong to Gazaway through an error made at the time of construction about 30 years ago. Henderson says he didn't know, but that as a state agency they couldn't file for prescriptive easement.
"Since the road had been used publicly for decades, it meets the requirements of a prescriptive easement and should remain a public access."
Prescriptive easements allow public control of land after the public has used it over a certain period of time.
Gazaway is prevented from disturbing or blocking the access road. It also allows the Arkansas Archeological Survey to mark stretches of the road that lie over an American Indian site the survey mapped in 1994. That section of the road will not be graded or gravelled, according to the order.
Testimony from Arkansas Archeological Survey director Thomas Green indicates that the entire roadway is archaeologically significant.
Somehow, the 310 tons of gravel are spread on the access road. The gravelling and grading of the road seriously affects the native sites there. Artifacts of all types are found in the piles of earth scraped from the road bed.
Arkansas law states that any destruction of a native site can only be done after notification of the appropriate tribe and with the land owner's consent. Neither was done and the AGFC now claim a prescriptive easement right to the ramp and road.
The AAC pointed out about all three sites:
"Based on the presence of houses and burials, it is my opinion the site is eligible for the National Register of Historic Places because of the information it contains about the pre history of Randolph County and Northeast Arkansas."
"I have received no written opinion from Judge Hilburn," Gazaway said
in a prepared statement Wednesday. "Schaeffer's Eddy will now go into the
national spotlight as a landmark case on the private property rights and
[American Indian] burial sites issues in America today...
"All concerned private landowners should become more aware as this case now goes [to appeal]," he added. "Injustice anywhere is a threat to justice everywhere."
ARKANSAS CODE ANNOTATED:
§ 13-6-403. State plan for the conservation of archeological resources in Arkansas.
(a) The public has a right to the knowledge to be derived and gained from the scientific study of human skeletal burial remains and burial furniture.
(b) Therefore, when justified by "A State Plan for the Conservation of Archeological Resources in Arkansas" as promulgated by the State Archeologist and the State Historic Preservation Officer, the investigation, excavation removal, and analysis of human skeletal burial remains and burial furniture is authorized and, if done, must be carried out with the consent of the landowner and consultation with the appropriate tribe, if identifiable, and under the direction of archeologists employed by the state or the United States government or by archeologists meeting the United States Department of Interior's professional qualifications standards found in the current Code of Federal Regulations.
ARKANSAS ARCHEOLOGICAL SURVEY:
Dear Mr. Gazaway-.
Research Stations: Arkansas State University, Arkansans Tech University, Henderson State University, Parkin Archeological State Park, Southern Arkansas University, Toltec Mounds State Park, University of Arkansas- Fayetteville, University of Arkansas- Monticello University of Arkansas- Pine Bluff
Sincerely, Thomas J. Green Director
ARKANSAS ARCHEOLOGICAL SURVEY
SITE SURVEY REVISIT FORM
State Site No. 3 RA 1 et al
Site Visited By (name and address) Dan F. Morse and Gary Gazaway
Info Provided (name and address) Gary Gazaway
Form Filled Out By Dan F. Morse
USGS Quad (name, date, series) Reyno 1968 7.5'
Field Observations Re: 3 RA 429, 3 RA 430, New sites
The Ford-Redfield site 3 RA 1 probably refers to the whole field. Several sites are involved including a "Dalton" site on a ridge to the west. 3 RA 429 has burials which are being dug by grave robbers. Game and Fish road construction and maintenance have and continue to impact 3 RA 430. A new site south of the boat landing also had a cemetery (immediately lost) exposed several years ago. 3 RA 1 on the 3 RA 429 map is an old house place. Carl Vandever ("Vanderbush boy") used to live there; now lives in the house shown on the 3 RA 429 map.
Note: This field should be mapped ASAP.
IN THE CHANCERY COURT OF RANDOLPH COUNTY, ARKANSAS
GARY PUGH, BUDDY EDINGTON, TOMMY CAMPBELL, LARRY LEWALLEN, STEVE BELL, KEITH FUTRELL, JIM ULMER, CAN POPE, ALVIE BROWN
WILLIAM BATES, DOROTHY L. BATES, GARY GAZAWAY
Now on this the ____ day of January, 1999, this matter comes before the Court: and from the testimony, exhibits, pleadings, and other evidence the Court finds as follows:
1. This case involves the requisites for establishment of a prescriptive easement. In July of 1994, the defendant, Gary D. Gazaway, erected a gate blocking the road leading to an access area to the Little Black River, commonly known as Shaver's Eddy. The plaintiffs filed suit to enjoin the defendants from blocking the road and asserted the general public's right to continued travel over such road by way of a prescriptive easement.
2. The court finds that the evidence supports the establishment of prescriptive easement, in favor of the general public, over the existing roadway and access to the Little Black River commonly known as Shaver's Eddy. The defendants are enjoined from disturbing or blocking the general public's access to the road and access area as it now exists.
3. Testimony from the Arkansas Archeological Society suggested that the State Site No. 3RA 429, as denoted in the William Mc Alexander Survey, may be larger than originally indicated by said survey and that the site may include a part of the roadway. The Court finds that there is a public policy in this State for protecting this area. Testimony from the Arkansas Archeological Society indicated that further grading and gravelling of the roadway that lays over this portion of Site No. 3RA 429 could damage or destroy archeological and scientific information. Therefore, the Court finds that, provided the Arkansas Archeological Society will clearly flag and mark the portion of Site No. 3RA 429 which lays over the roadway, than that the portion of the road so indicated and marked shall not be further gravelled or graded.
IT IS SO ORDERED
NOT SIGNED BY HONORABLE JUDGE TOM L. HILBURN, PENDING?
Gary D. GAZAWAY v. Gary PUGH, et al.
CA 99-672 ___ S.W.3d ___
Court of Appeals of Arkansas
Divisions IV and I
Opinion delivered March 15, 2000
1. Easements -- prescriptive easement -- burden of proof. -- One asserting an easement by prescription must show by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period.
2. Easements -- permissive or adverse use -- question of fact. -- The determination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous.
3. Easements -- adverse use -- ripens into absolute right after seven years. --Where there is usage of a passageway over land, whether it be by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absoluteright.
4. Easements -- adverse use -- length of time & circumstances sufficient to establish. -- The length of time and circumstances under which a roadway was opened and used are sufficient to establish an adverse use.
5. Easements -- permissive use -- original restriction deemed abandoned if landowner does not object to use after long passage of time. -- The original restriction in the nature of a permissive passageway across the land of another may be deemed to have been abandoned if the use is not objected to by the landowner after a long passage of time.
6. Easements -- permissive use -- presumption overcome. -- Having found acquiescence to longtime use by persons other than family or friends, the appellate court held that the presumption of permissive use had been overcome.
7. Appeal & error -- axiomatic principles -- prevailing party cannot appeal. --It is so well settled as to be axiomatic that the prevailing party cannot appeal.
8. Cultural resources -- archeological sites -- artifacts protected by criminal-justice system. -- The plain language of Ark. Code Ann. § 13-6-303(b) (Repl. 1999) entrusts the protection of artifacts to the criminal-justice system and specifically commands State prosecutors to enforce these laws; the protection of burial sites is also expressly entrusted to the criminal-justice system under Ark. Code Ann. § 13-6-408, which makes desecration of a burial site a Class D felony.
Appeal from Randolph Chancery Court; Thomas L. Hilburn, Chancellor; affirmed.
Sharp, Beavers & Cline, by: R. Alan Cline, for appellant.
John C. Throesch, for appellees.
Andree Layton Roaf, Judge. Gary D. Gazaway appeals a decree entered by the Randolph County Chancery Court finding that a public prescriptive easement exists in a gravel road and turn-around area on land owned by Gazaway and others and enjoining the landowners from blocking or interfering with the public's use of the easement. The court also found that because of the State's public policy for protecting archeological sites, further graveling or grading of theroad would be excluded from any areas that the Arkansas Archaeological Survey clearly flagged and marked as traversing Native American burial sites and artifacts. On appeal, Gazaway argues that the chancellor: 1) was clearly erroneous in finding that the appellees met their burden in proving that a public prescriptive easement existed; 2) was clearly erroneous in finding that the public's use of the property was not permissive; and 3) abused his discretion in establishing the easement in light of Ark. Code Ann. §§ 13-6-301 et seq. and -401 et seq. (Repl. 1999). We affirm.
This case involves access to a boat ramp and an area known as "Schaeffer's Eddy" on the Little Black River near Pocahontas. In July of 1994, Gazaway erected a gate on the gravel road that extends from a Randolph County road across his property. Gary Pugh and eight other hunters and fishermen joined together and sued William and Dorothy Bates, whom they believed to have erected the gate, to have the blocked road declared a public prescriptive easement and to enjoin the landowners from interfering with their use of the road. The Bateses quitclaimed their interest in the property that the roadway traverses to Gazaway, who subsequently joined the lawsuit as a defendant.
At the November 19, 1998, hearing on the petition, RandallBarnett, a twenty-three-year employee of the Randolph County Highway Department, testified that he graded the road in question for several years and hauled gravel to the road. He claimed that the road was graded three or four times a year, as requested.
Jim Andrews testified that he was county judge from 1985 through 1994. He stated that the county would grade the road three to five times a year and place gravel on it as needed. According to Andrews, the road got more attention during duck season, if requested; the county had once widened the road at the request of Dr. Bates; and the county put gravel on the road during the mid-1980s at the request of another member of the Gazaway family.
Seventy-one-year-old Zeldon Rapert testified that he moved into the area in 1942, and his father farmed the land owned by the appellant's grandfather, Cleve Gazaway. He testified that there were six to eight houseboats in the eddy and that trucks traveled over the road every week carrying shells collected by local residents for a button factory in Newport. He also remembered commercial fishing being conducted at the eddy and that trucks often came down the road to pick up fish. He also testified that he used the road for hunting and fishing access to the river and kept his boat there. Rapert claimed that he never knew of anyone having to ask Cleve Gazaway for permission to use the road. Rapertalso stated that he used the road to access a ferry located just above the eddy. He also remembered loggers using the road and was unaware of their asking permission. On cross-examination, Rapert stated that Gazaway allowed everyone to use the road. He admitted that the recreational users of the road were mostly family or friends, and that he had no knowledge regarding the arrangements for use of the road by the commercial vehicles.
Gary Cole, an Arkansas Game and Fish Commission enforcement officer, testified that he was familiar with the road since 1980, that the road provides access to the Dave Donaldson Wildlife Management Area, and that it is used year round by sportsmen. The road, however, received heaviest use during duck season, with seventy-five to one hundred vehicles using it on opening weekend and fifty to sixty during the week, fluctuating with the duck population. He also testified that Dr. Bates asked him to patrol the area more closely in the mid-1980s when he had problems with people trashing the land. He stated that he regarded the Bateses as the owners and that their general attitude was that as long as people respected the property, the Bateses did not mind them using the road.
B.E. Foster, a retired Randolph County road worker, who worked from 1968 to 1984, testified that he graded the road every three orfour months and frequently put gravel on it. He stated, however, that regular county roads were graded about once a month. Foster admitted that he did not know who requested the grading, and he also stated that if a private landowner requested grading, the county would do it.
Tommy Campbell, one of the named plaintiffs, testified that he started using the eddy in 1966 or 1967 and that the road was in regular, year-round public use since that time, although it was used more heavily during the duck season. He also said that he knew the Bates and Gazaway family since he was a child and that he never asked permission to use the road.
After the chancellor took Gazaway's directed-verdict motion under advisement, Gazaway presented his case. Gazaway testified that since 1931, his family owned the land over which the road to the eddy passed, and he had succeeded his grandfather, father, and brother in title to the property. He also noted that Dr. Bates was his uncle and had been the caretaker of the property. He stated that Zeldon Rapert was a friend of the family and was never denied access to the property. Gazaway stated that his grandfather "basically" allowed people that the family knew to have access to the eddy. Gazaway stated that prior to 1970, the road was used very little because it was a mud pit, and to the extent that it wasused, it was only by Carl Vanderver's farm machinery. He also stated that the location of the road changed during the 1960s when it was adjusted to accommodate farming on the property. He asserted that gravel was not put on the existing road until September 21, 1995, when 312 tons of SB2 was placed on the road, and it was widened from 18 feet to 28.6 feet.
According to Gazaway, he became interested in protecting his property in 1991 when he discovered four vehicles with Missouri plates and the owners "trashing" the area with beer cans and playing loud music. In January of 1994, he stated that he put up a gate to monitor the situation and that he "wanted to possibly make a business out of it," but did not close the gate until July 1, 1994, when he discovered that people were looting Native American artifacts. He stated that prior to the 1990s, the people who used the roads were mostly friends and family and local people, and he kept it open as "kind of a public service." According to Gazaway, in 1995, after consulting with the Arkansas Archaeological Survey, he posted signs on his property that just disappeared, and he stated that he had to run off several artifact looters.
Julie Morrow, Station Archaeologist for the Arkansas Archaeological Survey, testified that the eddy was a significant archeological site and that it had been disturbed by grading orplowing. She noted that artifacts were found on the road bed and opined that continued systematic use of the road by the public would damage the artifact deposits. Thomas Green, Director of the Arkansas Archaeological Survey, testified that the area in question contained three archeological sites, one of which was eligible for the National Register of Historic Places. He also examined bones found in the area and opined that they dated to between 1000 and 1500 A.D. He also stated that the road damaged the archeological site and that if the area was a burial site, it would make no difference as to how long the remains had been placed there.
Carl Vanderver, a resident of the eddy, testified that the main purpose of the road was to provide access for the people who lived, worked, or farmed on the eddy. He claimed he knew most of the people who used the road. Vanderver claimed that until the Game and Fish Commission put chat on the road in the mid-nineties, it was a dirt road and was impassable during bad weather. According to Vanderver, people asked permission to come into the gate and to use the land for hunting and fishing. He stated that prior to 1994, the county would only grade the road if someone asked; however, in 1994 and 1995, the county graveled and graded the road as if it were a county road. David Graham, a lifelong resident of the area, likewise testified that he and other peopleused the road with the Gazaways' permission. He also testified that the road was just a dirt path until the county graveled and graded it in the mid-1990s.
On appeal, Gazaway argues that the chancellor was clearly erroneous in finding that the appellees met their burden of proving the necessary elements to establish a prescriptive easement in favor of the public and in finding that the public's use of the property was not permissive. Because these points are complimentary, we will discuss them together. Gazaway acknowledges that the issue is one of fact; however, he asserts that the facts presented did not prove that the use of the road was adverse to him or his predecessors in title. He contends that there is no evidence of hostility. Moreover, citing Bridwell v. A. P. & L., 191 Ark. 227, 85 S.W.2d 712 (1935), for the proposition that use of a roadway over unenclosed and unimproved land is deemed to be permissive and not adverse to the owners of the land, he asserts that the evidence in this case did not overcome the presumption of permissive use. We disagree.
One asserting an easement by prescription must show by a preponderance of the evidence that his or her use has been adverse to the true owner and under a claim of right for the statutory period. Johnson v. Jones, 64 Ark. App. 20, 977 S.W.2d 903 (1998). Thedetermination of whether the use of a roadway is adverse or permissive is a question of fact, and a chancellor's finding with respect to the existence of a prescriptive easement will not be reversed by this court unless it is clearly erroneous. Id. Where there is usage of a passageway over land, whether it be by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right. Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). Moreover, the length of time and circumstances under which the roadway was opened and used are sufficient to establish an adverse use. Zunamon v. Jones, 271 Ark. 789, 610 S.W.2d 286 (Ark. App. 1981).
We find this to be a very close case because almost all of the appellees' witnesses were personally acquainted with the Gazaway family, and their testimony about their use of the roadway was not in any way inconsistent with the scope of permission that the Gazaway family at least implicitly extended to them. We also find no significance in the fact that the county graded and graveled the road; there is no dispute that the county regularly provided this service for private landowners. However, Gary Cole's testimony decisively tips the balance in favor of the appellees. His account of the sheer number of hunters and fishermen present at the eddy suggests that not all of the use was by family or friends. In Kimmer v. Nelson, 218 Ark. 332, 236 S.W.2d 427 (1951), the supreme court held that the original restriction in the nature of a permissive passageway across the land of another may be deemed to have been abandoned if such use is not objected to by the landowner after a long passage of time. Similarly, in Fullenwider v. Kitchens, supra, the supreme court applied the principle announced in Kimmer to uphold a lower court's finding that use of a road through wild and unimproved land for over thirty years overcame the presumption that use of the land was permissive. In the instant case, we find similar acquiescence to longtime use, and therefore we hold that the that the presumption of permissive use had been overcome.
Gazaway also argues that the action taken by the trial court to conform to the requirements of Ark. Code Ann. sections 13-6-301 et seq. and 401 et seq. (Repl. 1999), is "insufficient to protect and preserve these archaeological sites" and is therefore violates these statutes. Further, quoting language in the preamble to Ark. Code Ann. § 13-6-301, he asserts that as an institution of thisState, this court has a "duty to exercise its powers and discretion in pursuance of the stated objectives of the statute." This novel argument is without merit.
First, it is not clear from the order appealed from that Gazaway did not prevail on this issue, in that the order directed measures designed to protect artifacts and burial sites. It is so well settled as to be axiomatic that the prevailing party cannot appeal. See, e.g., Smith v. Hansen, 323 Ark. 188, 914 S.W.2d 285 (1996); Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994). Although Gazaway is now attempting to assert that the trial court's relief is inadequate, we note that he did not file a posttrial motion informing the chancellor that his order is not good enough. However, even if we were to reach this issue, we would decline to accept Gazaway's overly broad interpretation of the statutes and their preamble. The plain language of Ark. Code Ann. § 13-6-303 (b) entrusts the protection of artifacts to the criminal justice system and specifically commands State prosecutors to enforce these laws. We note as well that the protection of burial sites is also expressly entrusted to the criminal justice system because Ark. Code Ann. § 13-6-408 makes desecration of a burial site a Class D felony.
Pittman, Jennings, Bird, JJ., agree.
Crabtree and Neal, JJ. dissent.
Terry Crabtree, Judge, dissenting. I cannot agree with the majority opinion that the appellee established a "public prescriptive easement" or that the order entered by the trial court in this case was consistent with Arkansas Code Annotated section 13-6-301 (Repl. 1999) et seq. I agree with the facts as stated in the majority opinion and the statement in the majority opinion that:
We find this to be a very close case because almost all of the appellees' witnesses were personally acquainted with the Gazaway family and their testimony about their use of the roadway was not in any way inconsistent with the scope of permission that the Gazaway family at least implicitly extended to them. We also find no significance in the fact that the county graded and graveled the road; there is no dispute that the county regularly performed this service for private landowners.
The elements of a prescriptive easement were stated in Zunamon v. Jones, 271 Ark. 789, 791, 610 S.W.2d 286, 287-88 (1981) as follows:
The controlling law of the case before us is stated in Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). The court in Fullenwider, after it reviewed the leading prescription right cases in Arkansas, stated the law as follows:
A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear,
in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to his interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right.
Zunamon and Chicago Mill argue, and we believe correctly, that the original presumption in favor of a permissive use cannot be rebutted solely by evidence showing the road was used by the public over an extended period of time. ...
It is clear that something more than use is required. Some act sufficient to put the landowner on notice that the other party, in this case the public, is using the property adverse to the interest of the landowner. In my opinion, the appellees failed to establish that the use was adverse to that of the landowner. The volume of traffic is not sufficient.
I do not agree that the testimony of Gary Cole tips the scales in favor of the appellee. There is no doubt that the appellant established that several people were given permission to use the road to gain access to the eddy and the Dave Donaldson Wildlife Management Area, and that he felt it was a "public service" to allow some of the people access to the area. Are we to penalize the appellant landowner for allowing others to cross his property to enjoy the eddy and the wildlife management area? I find it very disturbing that the "public," referred to in this case, never came forward to testify as to their desire to use the property ofanother person for purposes of fishing and hunting. The witnesses who testified had some understanding that they had permission to cross the property of the appellant, but nothing other than an assumption supports the conclusion that the others who used the property did so without permission. In my opinion, the adverse nature of the use cannot be presumed when one's property is to be taken by the "public"; on the contrary, the presumption is that the use is permissive. Id.
I have even more difficulty with the majority opinion's position on the archeological site. The evidence was clear that the roadway passed over burial grounds that date back 1,000 to 1,500 years. The chancellor in this case did a commendable job trying to balance the interests involved, but unfortunately the interest that lost was that of the burial grounds. The order entered herein would allow a large number of vehicles to pass over the burial grounds on a regular basis, causing irreparable damage to the site. Arkansas Code Annotated section 13-6-304 (Repl. 1999) states, "All state agencies, departments, institutions, and commissions, as well as all counties and municipalities, shall cooperate fully with the Arkansas Archeological Survey in the preservation, protection, excavation, and evaluation of artifacts and sites." The clear intent of the legislature is to protect the history of our state and the sites that contain artifacts. Perhaps even more persuasive is Ark. Code Ann. § 13-6-308 (Repl. 1999),which states:
In order that sites and artifacts on state-owned or controlled land shall be protected for the benefit of the public, it is made a misdemeanor for any person, natural or corporate, to write upon, carve upon, paint, deface, mutilate, destroy, or otherwise injure any objects of antiquity, artifacts, Indian painting, or sites. All such acts of vandalism shall be punished as misdemeanors according to the provisions of this subchapter.
In my opinion, it is inconsistent to say that artifacts are any less important when on land privately owned by an individual as opposed to land owned by the State. Surely, the statute should afford the same protection to artifacts on private property, as it does to artifacts on State property when the landowners ask for such protection.
As stated earlier, the road clearly goes over burial grounds. Arkansas Code Annotated section 13-6-408 (Repl. 1999) makes it a misdemeanor to desecrate a burial ground the first time and a felony for subsequent acts; yet, the majority opinion leaves its enforcement to the prosecuting attorney. The issue is solidly before us. In my opinion, an order granting an injunction in this case to prohibit the destruction of the burial grounds would be consistent with the purposes of the statute and the intent of the legislature, and appropriate to address a civil wrong committed by the destruction of a burial site on the appellant's land. Are we to wait even longer so the destruction can be complete by the time an appropriate complaint can be made? Further, what rights havethe appellee obtained in this case? According to the majority opinion, they have the right to cross the land of the appellant because of the establishment of a public prescriptive easement, but to do so would be a misdemeanor or felony depending on how many times the person has passed across the burial ground. For this reason alone, I would reverse the trial court. But more importantly, is the appellee in this case willing to commit a misdemeanor or felony to fish the eddy and hunt the wildlife management area? I doubt it.
Neal, J., agrees.
March 17, 2000
Despite Wednesday's (March 15) ruling, Gazaway still plans to limit access through his property by running wire fencing to narrow the road's width. The road is 30 feet wide, but the chancellor had ruled that the public portion of the road has an 18-foot width. So that's all motorists will get, Gazaway said Wednesday.
"I will fence the 18-foot easement on both sides to follow the letter of the law, and it will be impossible for two vehicles pulling boat trailers to meet and pass in the roadway," Gazaway said. "And when the water gets up during duck season, there will be no [room to] turn around at the river.
In his opinion which upheld Hilburn's ruling, Arkansas Court of Appeals Judge Andree Layton Roaf noted that 75 to 100 people used the road during the opening weekends of duck season each year.
"[The court] testimony decisively tips the balance in favor of the appellees," Roaf wrote. "The sheer number of hunters and fishermen present at the eddy suggests that not all of the use was by [Gazaway's] family and friends."
The ruling also noted that protection of American Indian burial sites is entrusted to the criminal justice system, not private landowners. Both state and federal law prohibits desecration of American Indian grave sites.
In a dissenting opinion, Judge Terry Crabtree wrote that the volume of traffic which used the road was not sufficient to grant a prescriptive easement. "Are we to penalize the appellant landowner for allowing others to cross his property to enjoy the eddy and the wildlife management area?" Crabtree wrote in his opinion. "I find it very disturbing that the 'public,' referred to in this case, never came forward to testify as to their desire to use the property."
Crabtree added that the vehicles would be allowed to travel over the burial site and violate state law. "According to the majority opinion, they have the right to cross the land ... but to do so would be a misdemeanor or felony depending on how many times the person has passed across the burial ground."
Gazaway said he intends to file a petition for a rehearing of the case. Court of Appeals decisions generally cannot be appealed to a higher court in Arkansas.
Despite Wednesday's ruling, Arkansas Game and Fish Commission officials intend to build a new boat ramp near Gazaway's property. Surveyors have suggested building a roadway from the edge of Gazaway's road through a wooded area to the river, Assistant Director Scott Henderson said.
The commission owns land along a road that leads to Gazaway's road. The project could cost $250,000, Henderson said. Gazaway offered to sell his land to the commission in 1994 for $250,000.
Online Updates on Shaver's Eddy.
Most of the info here is already in this article, but there may be breaking news after I publish.
Article by Kenneth Heard,
Arkansas Democrat-Gazette, Pocahontas, AR:
An American Indian group plans to challenge a recent court order and preserve a sacred burial site at a popular Black River boat ramp just east of Pocahontas.
Lee "Standing Bear" Moore, the director of the Manataka American Indian Council of Hot Springs, AR, said he hopes to develop Schaeffer's Eddy into a site where the remains of ancient American Indians can be properly buried.
The effort follows a court ruling that keeps the gravel road leading to the landing open to the public. The landowner had tried to close the road to protect the burial site and potential artifacts. "It is a sacred site at the present time," said Moore, who supports the effort to close the area. "Burial ceremonies have been performed there, thereby consecrating that site as a Native American sacred site."
The road cuts through the eastern edge of 210 acres owned by Gary Gazaway, a professional musician. Gazaway has leased some of his land to Moore and the council for the burial site. Gazaway's family has owned the landing and the road leading to the ramp for decades. Duck hunters and fishermen used the road for years because it is the only reliable access to that part of the Black River and a nearby wildlife refuge.
But Gazaway closed the road in the summer of 1994 after he found bones about 15 feet from the road. Archaeologists said the remains were 1,000 to 1,500 years old and could have been from a 7- to 13-year-old child. Numerous pottery shards, bits of tools and other artifacts were also found on Gazaway's land.
Closing the road prompted a lawsuit against Gazaway by nine duck hunters who claimed they had been using the road for years and didn't need Gazaway's permission. Randolph Chancellor Thomas Hilburn ruled in favor of the hunters in January 1999 by saying the road should be considered a public road.
Gazaway appealed Hilburn's ruling, and on March 15, the Arkansas Court of Appeals upheld the lower court, which held that frequent, unchallenged use of the road had made it a public easement.
"What surprises me is that for years I've trusted in the Arkansas judicial system on property laws," Gazaway said. "I never dreamed that duck hunters could influence the Court of Appeals to go against their own laws."
Moore (Lee "Standing Bear" Moore, the director of the Manataka American Indian Council of Hot Springs) said the appeals court's decision conflicts with other state and federal laws for protection of cemeteries, human remains and artifacts. "We feel like we have a vested interest to intervene," he said. "They're talking about us in this lawsuit, and they are tromping on us at the site."
In a dissent, Court of Appeals judge Terry Crabtree stated that the court's ruling puts it in conflict with other laws. "According to the majority opinion, they have the right to cross the land ... but to do so would be a misdemeanor or felony depending on how many times the person has passed across the burial ground," Crabtree said in his opinion.
For now, the road and boat launch are open to the public. But until the road is closed and traffic restricted, the burial site and artifacts are at risk, Moore said. "I believe it's out of sight, out of mind for the public's lack of awareness of the site," Moore said. "But if you bury your grandparents in Arkansas and then move away, just because you can't see their graves doesn't mean they're not there still."
State Game and Fish Commission officials have said they may build another road on property the state owns near Gazaway's road so outdoorsmen will have another way to reach the river. However, the commission needs approval from the U.S. Army Corps of Engineers because some of the land is considered wetlands. The commission had coveted Gazaway's landing because it's the only one within 30 miles.
Gazaway has already dumped several truckloads of dirt at the landing and will smooth it to allow the burial of bones. There still is enough room at his landing for hunters to launch their boats. Bones that can't be identified as belonging to a particular tribe or those older than known Arkansas tribes will be buried at the site, Moore said.
The Manataka council will install motion detectors and security cameras at the landing to prevent looters from desecrating the burial site, Moore said. "We are submitting plans for continued aggressive maintenance and preservation of this site."
Similar burial sites are located at the Parkin Archeological State Park in Cross County. Moore said he will continue working with Gazaway to ensure the property is protected and wants to develop education programs to inform hunters about respecting such sites. "This is such an important issue for our council," Moore said. "This is something we will commit all our resources to."
This article was published on Thursday, March 30, 2000 Full story - this is the page of the American Indian Movement of Tennessee and has many other articles.
|American Indian Religious Freedom Act|
|Archaeological Resources Protection Act of 1979|
|Native American Graves Protection and Repatriation Act|
|United Nations Convention on Genocide|
Back to Four Corners Postcard