                                 Cite as 2015 Ark. App. 207

                 ARKANSAS COURT OF APPEALS
                                       DIVISION III
                                       No. CV-14-819


                                                  Opinion Delivered   April 1, 2015
JOHNNY HINCHEY, SEARCY
COUNTY JUDGE                                      APPEAL FROM THE SEARCY
                   APPELLANT                      COUNTY CIRCUIT COURT
                                                  [NO. 65CV-10-60]
V.
                                                  HONORABLE ALAN DAVID EPLEY,
DUFORD TAYLOR, ROSALEE                            JUDGE
TAYLOR, JIM TAYLOR, CORRINE
TAYLOR, BRENT TAYLOR, and
ROBIN TAYLOR                                      AFFIRMED
                     APPELLEES



                            M. MICHAEL KINARD, Judge

       Appellant, Searcy County Judge Johnny Hinchey, appeals from an injunction and

monetary judgment entered against him in favor of appellees, the Taylors. Judge Hinchey

argues that the circuit court lacked jurisdiction and erred in failing to find that his actions

were authorized as county judge. We affirm.

       Appellees, landowners in Searcy County, filed suit against Hinchey individually and

in his official capacity as county judge of Searcy County. Appellees alleged that Hinchey had

unlawfully removed a cattle guard at the entrance to Circle H Road, which passed through

appellees’ property. Appellees also alleged that Hinchey had trespassed on their property and

removed a gate in order to build a road across their property to Tucker Cemetery. Appellees

sought for Hinchey to be enjoined and restrained from entering their property and to be

ordered to replace the cattle guard. They sought compensatory damages for rentals upon
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their lands and punitive damages for violation of their civil rights under the Arkansas

Constitution.

       At the initial trial on the case, the circuit court determined that the case should be

remanded to the Searcy County Court to determine whether Circle H Road was a county

road. The parties were allowed to file briefs on this matter, and the court subsequently

entered an order finding that remand would be in error. The case proceeded toward trial,

and Hinchey filed a motion to dismiss the complaint, alleging lack of subject-matter

jurisdiction, failure to state facts upon which relief could be granted, and immunity.

       Following a bench trial, the circuit court entered judgment on June 24, 2014. The

court granted Hinchey’s motion to dismiss as to his liability as an individual but denied the

motion as to his official capacity. The court found that the portion of Circle H Road at issue

was a public road, noting that Searcy County had routinely for many years graded the road.

However, the court found that there had been no formal action taken in compliance with

the law to make it a county road. The court found that appellees had a property right to

have the cattle guard in the road and in their fence line and that County Judge Hinchey’s

removal of the cattle guard was a taking of property without compensation and a violation

of appellees’ civil rights. The court issued a mandatory injunction requiring Judge Hinchey

to replace the cattle guard. The court denied appellees’ request for damages for the loss of

use of their field due to removal of the cattle guard, finding that they had failed to offer

evidence of the correct measure of damages.

       The court found that Judge Hinchey had constructed a new road on appellees’


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property to access Tucker Cemetery and had placed a new gate in the fence around the

cemetery. The court found that these actions constituted a taking of appellees’ property

without due process and violated their civil rights. The court awarded appellees judgment

of $1500 to cover the costs of removing the gravel, reseeding the roadway, and reinstalling

the gate. In addition, Judge Hinchey was ordered to remove the new gate installed in the

cemetery fence and restore the fence to its previous condition where it bordered appellees’

property.

       On appeal, Judge Hinchey first argues that the circuit court lacked subject-matter

jurisdiction over this case because it involved county-road matters. Judge Hinchey cites

article 7, section 28 of the Arkansas Constitution, which provides that the county courts shall

have exclusive original jurisdiction in “all matters relating to county . . . roads.” He also

relies on our supreme court’s opinion in Chamberlain v. Newton County, 266 Ark. 516, 587

S.W.2d 4 (1979), where appellant alleged that the county had constructed a road over her

property. The supreme court held that jurisdiction of a claim against the county for just

compensation for a completed taking was vested in the county court as a matter relating to

county roads. In the case before us, however, appellees were not seeking just compensation

for the taking of their property.

       In Passmore v. Hinchey, 2010 Ark. App. 581, 379 S.W.3d 497, we held that the circuit

court had jurisdiction over a suit alleging that the county judge had intentionally trespassed

over a private road, that he had violated appellant’s civil rights, and that he had illegally used

county funds to maintain and improve private property. Similarly, in this case, appellees


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were seeking to enjoin and restrain Judge Hinchey from trespassing on their private property

and violating their civil rights. Appellees also alleged that Judge Hinchey unlawfully

removed the cattle guard in Circle H Road. As explained below, Circle H Road was not

a county road. We conclude that the circuit court had subject-matter jurisdiction over this

case because it was not a matter relating to county roads.

       Judge Hinchey next argues that he had the authority to remove the cattle guard

because it was in a county road. He contends that the circuit court erred in failing to find

that Circle H Road had been transformed from a public road to a county road pursuant to

a 1983 ordinance enacted by the Searcy County Quorum Court. Among other things, this

ordinance purported to define county roads as “any existing road in Searcy County, Arkansas

which has been maintained by the Searcy County Road Department on or after January 1,

1982.” The ordinance was approved by the county judge at the time, appellee Duford

Taylor. Judge Hinchey also points to a 2012 ordinance approved by him during the

pendency of this action. This ordinance amended the 1983 ordinance and purported to

prove ownership of established county roads by attaching a list of established roads, including

Circle H Road, and a county road map. Judge Hinchey contends that these ordinances

comply with the statutory method of designating a county road found in Arkansas Code

Annotated section 27-66-207 (Repl. 2010). This statute provides in part that

       [t]he county judge in his or her discretion may designate as a county road any street
       or road dedicated to the public as a public thoroughfare, provided that a bill of
       assurance making the dedication is properly recorded.

       We agree with appellees that Judge Hinchey has failed to prove compliance with this


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statute. A dedication has been defined as the donation of land or the creation of an easement

for public use, which may be accomplished by express written instrument, or often by maps

or plats. Town of Gilbert v. Fruehauf, 2013 Ark. App. 17, 425 S.W.3d 816. There was no

evidence that Circle H Road had been dedicated to the public or that a bill of assurance had

been recorded, as required by Arkansas Code Annotated section 27-66-207. Nor has Judge

Hinchey shown compliance with any of the other methods by which a county road may be

created. See Arkansas Game & Fish Commission v. Lindsey, 292 Ark. 314, 730 S.W.2d 474

(1987) (county roads, as distinguished from public roads by prescriptive right, may be created

when a landowner dedicates a right-of-way to the county; when a county condemns and

pays for the right-of-way; and when a county judge enters an order, after notice, declaring

a mail route or a school bus route a county road). The standard of review on appeal from

a bench trial is not whether there is substantial evidence to support the findings of the circuit

court, but whether the circuit court’s findings were clearly erroneous or clearly against the

preponderance of the evidence. City of Rockport v. City of Malvern, 2010 Ark. 449, 374

S.W.3d 660. We hold that the circuit court’s finding that Circle H Road was not a county

road is not clearly erroneous.

       Judge Hinchey also contends that he did not exceed his authority with regard to the

road to the cemetery. He argues that a road across appellees’ property to the cemetery

already existed and that he was merely maintaining it pursuant to Arkansas Code Annotated

section 14-14-812(b) (Repl. 2013). This statute provides in part that the county judge is

authorized to improve and maintain any roads across public or private lands used or to be


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used for access to a cemetery, and the access roads shall be constructed to a standard and

nature to permit their use by automobiles.

       Judge Hinchey argues that satellite photographs and witnesses’ testimony demonstrated

that there was an existing road through appellees’ property leading to the cemetery. Judge

Hinchey did present testimony that a road to the cemetery existed on appellees’ property;

however, appellees presented conflicting testimony that there was no road through their

pasture until Judge Hinchey constructed one. Facts in dispute and determinations of

credibility are solely within the province of the fact-finder. City of Rockport, supra. The

circuit court was in the superior position of observing the witnesses’ testimony and the

locations witnesses pointed to on satellite photographs in describing the existence or

nonexistence of a road. We cannot say that the circuit court’s finding was clearly erroneous.

       Affirmed.

       ABRAMSON and VAUGHT, JJ., agree.

       Matthews, Sanders & Sayes, by: Doralee Chandler and Gail O. Matthews, for appellant.

       The Blagg Law Firm, P.A., by: Ralph J. Blagg, for appellees.




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