Attorney General of Arkansas — Opinion
Opinion Delivered October 28, 1999
MARK PRYOR, Attorney General
The Honorable Phillip T. Jacobs State Representative 819 Miller Street Clarksville, AR 72830-2239
Dear Representative Jacobs:
This is in response to your request for an opinion on the following question:
Is it legal for a City of the Second Class to spend monies and upkeep on a roadway that has not been deeded or dedicated to the City?
This question cannot be answered with a simple “yes” or “no.” Rather, it will require consideration of all the surrounding facts and circumstances. Clearly, the City cannot, as a general matter, make improvements to private property. See Ark. Const. art. 16, § 13 (“illegal exactions,” and cases thereunder). The mere fact that the roadway has not been deeded or formally dedicated to the City may not, however, be conclusive of the matter. A factual question may arise in the case of a roadway that has not been deeded or formally dedicated to the City, but has nevertheless been used by the general public. This raises the issue of dedication by “prescription.”
Please note that I have enclosed a copy of a recently issued opinion from this office, Opinion 99-202, which explores this issue. I will not restate the substance of that Opinion, except to note that the inquiry will likely turn on whether a public roadway has been established through long use by the public in general. This is an intensely factual question that cannot be resolved in the limited format of an opinion from this office. The City should consult its local counsel for further guidance in applying the relevant law to the specific facts at hand. If in fact there has been a dedication of the roadway to public use by prescription, then the City may, but is not required to, accept the dedication and spend monies maintaining the roadway. See generally City of Jonesboro v. Kirksey, 239 Ark. 205, 388 S.W.2d 78 (1965) (regarding city’s acceptance of dedication for public use through maintenance of roads).
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
MARK PRYOR Attorney General