When a county road department cuts down trees in the county road right-of-way that runs through your land, who owns the firewood?

Plain-English summary

State Representative John Payton wrote on behalf of a Baxter County constituent. The county road department had cut and removed trees in a county road right-of-way that crossed the constituent's farm. The constituent thanked the department for the work, then asked for the firewood and wood chips since the trees grew on his land. The department gave the wood to a neighbor instead and told the constituent the county could do what it wanted with the wood. Payton asked the AG two questions: who owns trees in a county road right-of-way, and does the county have authority to dispose of cut wood as it sees fit.

AG Leslie Rutledge answered:

1. Trees ordinarily belong to the adjoining landowner. Arkansas Supreme Court precedent (Wilkerson, Taylor, McLain, Freeze) treats a county road right-of-way as an easement, not a fee. Title to the underlying land (and the trees on it) remains with the original landowner. So as a matter of property law, the standing trees in the right-of-way were the constituent's.

2. Once the trees are properly removed, the county can dispose of them. Arkansas's rule (Cramer v. Ark. Okla. Gas Corp.; Arkla Gas v. Maxey) departs from many other states. Where the original taking of the easement is paid for at full land value (treated "as if the fee had been [fully] taken"), the landowner has no separate compensation right when timber is later cut to maintain the easement. The Arkansas Supreme Court favors that rule because it eliminates future litigation over additional construction or maintenance work on the easement. So the county judge, exercising his constitutional authority over county roads under Ark. Const. amend. 55, § 3 and his statutory authority under Ark. Code Ann. § 14-14-1102, has discretion over what happens to the wood once it is cut, so long as the removal was reasonable.

The combined holding leaves the landowner with title to standing trees but no claim to wood after the county properly removes it. Many landowners, including Payton's constituent, find this surprising.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the county have given the wood to the landowner instead of the neighbor?
Yes. The opinion identified the question as one of the county judge's discretion. The county judge could have decided to give the wood to the adjoining landowner, sell it, or dispose of it however he saw fit, so long as the removal was for a proper right-of-way purpose. There is no statutory mandate to favor the adjoining landowner.

What if the county cuts trees that are not actually obstructing the road?
That changes the analysis. The opinion's authority to dispose of the wood as the county sees fit was tied to the trees being removed because they interfered with the use of the right-of-way. Removal beyond what is reasonably necessary could exceed the easement and give rise to a trespass claim by the adjoining landowner. Whether a particular removal is within the easement is a fact question.

Is Arkansas's "no separate compensation" rule the same in every state?
No. The opinion contrasted Arkansas's rule with Maine's (Brooks v. Bess), where the adjoining landowner has a recovery right in the value of the cut trees. Arkansas takes the contrary view, treating the original easement compensation as full settlement.

How was the county road created?
The opinion identified three statutory paths: (1) landowner dedication under Ark. Code Ann. § 27-66-207 or § 27-66-208, (2) condemnation and payment under § 27-67-212 and § 14-298-101 et seq., or (3) county judge order declaring a mail or school-bus route a county road under § 27-66-205 or § 27-66-206. The opinion assumed the county acquired only an easement rather than a fee, which is the typical result.

Does the county judge's discretion extend to selling the wood for profit?
The opinion did not directly address sale-for-profit, but the rule it stated (county judge's discretion over the cut vegetation) is broad. A separate question is whether the proceeds, if sold, would be county funds subject to the usual county-funds-handling rules. That is a county-treasurer question, not addressed here.

Background and statutory framework

The opinion rests on three doctrinal pillars:

1. Right-of-way as easement, not fee. The Arkansas Supreme Court has consistently treated a public road right-of-way as an easement over the adjoining land, with title to the fee remaining in the landowner (Wilkerson, Taylor, McLain, Freeze, Lindsey). The 39A C.J.S. Highways treatise summarizes the same rule: "The ownership of trees in the highway remains in the proprietor of the fee."

2. The Arkansas full-value-at-taking rule. In condemnation/easement contexts, the Arkansas Supreme Court holds (Cramer; Arkla Gas v. Maxey) that the taker of an easement is liable for the full value of the strip "as if the fee had been [fully] taken," so subsequent damage to timber during construction or maintenance is not separately compensable. The court adopted this rule because it eliminates repeated litigation over later construction.

3. County judge authority over roads. Ark. Const. amend. 55, § 3 vests the county judge with authority to operate the county-road system. Ark. Code Ann. § 14-14-1102(b)(1)(A)(i) implements that. § 27-66-206(b) directs that once a road is declared a county road, the county judge takes charge of its maintenance "the same as other county roads." § 27-66-207 governs dedication and acceptance for perpetual maintenance. Reding v. Wagner confirms that this involves discretion.

Citations

Statutes and Constitution:

• Ark. Const. amend. 55, § 3 (county judge power over county roads)
• Ark. Code Ann. § 14-14-1102(b)(1)(A)(i) (Repl. 2013) (county judge's road authority)
• Ark. Code Ann. § 14-298-101 et seq. (county road condemnation procedures)
• Ark. Code Ann. § 27-66-205 (county judge order declaring mail/school-bus route a county road)
• Ark. Code Ann. § 27-66-206(b) (Repl. 2010)
• Ark. Code Ann. § 27-66-207 (Repl. 2010) (dedication and perpetual maintenance)
• Ark. Code Ann. § 27-66-208 (related dedication)
• Ark. Code Ann. § 27-67-212 (state highway condemnation)

Cases (all Arkansas Supreme Court / Arkansas appellate):

• Wilkerson v. Gerard, 200 Ark. 125, 138 S.W.2d 76 (1940)
• Taylor v. Armstrong, 24 Ark. 102 (1863)
• McLain v. Keel, 135 Ark. 496, 205 S.W. 894 (1918)
• Freeze v. Jones, 260 Ark. 193, 539 S.W.2d 425 (1976)
• Arkansas Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987)
• Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970)
• Cramer v. Ark. Okla. Gas Corp., 316 Ark. 465, 872 S.W.2d 390 (1994)
• Arkla Gas Co. v. Maxey, 245 Ark. 698, 415 S.W.2d 52 (1967)
• Craig v. O'Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957)
• Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002)
• Craighead Electric Cooperative Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2020-043
December 2, 2020
The Honorable John Payton
State Representative
P. 0. Box 181
Wilburn, AR 72179-0181
Dear Representative Payton:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE R UTLEDGE
This is in response to your request for an opinion regarding ownership of trees and
related wood products within the county's right-of-way. Your correspondence
provides the following background information:
[T]he Baxter County Road and Bridge Department removed and cut
trees in a county road right of way that passes through my
constituent's farm. My constituent raised no objections to the removal
and even thanked them for their efforts. Since the trees were in some
part on his property, he simply requested all the useable firewood and
wood chippings resulting from the aforementioned cutting and
removal. He made said request as his family burns significant
firewood and has a large garden requiring wood chippings for mulch.
Much to his chagrin and disappointment, the Department ultimately
gave the firewood and wood chippings from his property to his
neighbor. When he objected, he was told by the Department that they
could do whatever they wanted to with the right of way and resulting
firewood and wood chippings. He objected further to the county
judge but was again denied the firewood and wood chippings from his
property.
In this regard, you have asked the following questions:
323 CENTER STREET. SUITE 200 •LITTLE ROCK, ARKANSAS 72201
TELEPI JONE (50 I) 682-2007 • FAX (50 I) 682-8084
INTERNET WEBSITE. http://www.ag.state.ar.us/ The Honorable John Payton
State Representative
Opinion No. 2020-043
Page 2
1) Who owns the trees and related wood products located within a
county road right of way?
2) Does a county, by and through its employees or agents, have the
authority to do whatever they want with the trees, timber, and
related wood products that are cut and removed from a county road
right of way?
RESPONSE
In response to your first question, the trees and other vegetation located within the
county road right-of-way ordinarily belong to the owner of the land that is occupied
for the right-of-way. The answer to your second question is "yes," with the
understanding that the trees were removed because they interfered with the use of
the county road right-of-way.
DISCUSSION
Question 1: Who owns the trees and related wood products located within a
county road right of way?
I have no information regarding the creation of the county road or right-of-way that
is the subject of your question.1 But the term "right-of-way" usually means an
easement or strip of land which is occupied for the easement. 2 Thus, in the case of
a county road right-of-way, ownership would ordinarily remain with the original
landowner. And the county would "merely" enjoy "an casement. ''3
1 As explained by the Arkansas Supreme Court,"[ c ]ounty roads ... may be created in either of three
ways. First, the landowners can dedicate the right-of-way to the county. See [A.C.A. §§ 27-66-
207 and -208] .... Second, a county may condemn and pay for the right-of-way. See [A.C.A. §§
14-298-10 I et seq. and 27-67-212] .... Third, the County Judge may enter an order, after notice,
declaring a mail route or a school bus route a county road. [A.C.A. §§ 27-66-205 and -206].''
Arkansas Game & Fish Comm'n v. Lindsey, 292 Ark. 314, 321, 730 S.W.2d 474, 478 (1987).
2 Craighead Electric Cooperative Corp. v. Craighead County, 352 Ark. 76, 98 S.W.3d 414 (2003).
3 Wilkerson v. Gerard, 200 Ark. 125, 128, 138 S.W.2d 76, 78-79 ( 1040) (stating that had there been
evidence that a county road was established, "it is most highly probably that there was merely an
easement granted over this land and that the title or fee remained in the owners."). See also Freeze
v. Jones, 260 Ark. 193, 200, 539 S.W.2d 425, 429 (1976); McLain v. Keel, 135 Ark. 496, 205 S.W.
894, 894 ( 1918); Taylor v. Armstrong, 24 Ark. 102, 104-05 ( 1863 ). The Honorable John Payton
State Representative
Opinion No. 2020-043
Page 3
Accordingly, I take it that the county acquired an easement when the county road
you reference was established, and that the underlying fee remains in the adjoining
landowner. I believe it follows as a general matter that the trees and other vegetation
located within the county road right-of-way belong to the owner of the fee.4
Question 2: Does a county, by and through its employees or agents, have the
authority to do whatever they want with the trees, timber, and related wood
products that are cut and removed from a county road right of way?
Yes, with the understanding that the trees were removed because they interfered
with the use of the county road right-of-way.
You state that your constituent did not object to the trees' removal and was indeed
thankful for their removal. I gather from this limited background information that
the trees were removed because they interfered with use of the public right-of-way
and that their removal was a proper exercise of the right-of-way easement.
Generally, the holder of a right-of-way easement has the right to preserve and
maintain the easement and may remove trees that obstruct an easement roadway.5
Indeed, in the case of county roads in Arkansas, the county judge is specifically
responsible for "the maintenance and construction of public roadways .... "6 The
4 See Davis v. Arkansas Louisiana Gas Co., 248 Ark. 881, 883-84, 454 S.W.2d 331, 333 (1970)
(noting that when a right-of-way easement is taken, the landowner has the "right to exercise any
and all rights of ownership except such as are inconsistent with the easement."); 39A C.J .S.
Highways § 205 ("The ownership of trees in the highway remains in the proprietor of the fee.").
5 Davis, supra; Craig v. O'Bryan, 227 Ark. 681, 686, 301 S.W.2d 18, 21 ( 1957) ("'Whoever has an
easement in or over the land of another has the right to do everything necessary to preserve the
easement, and the right to repair a way is fully established." (Quoting Doan v. Allgood, 1923, 3 I 0
Ill. 381, 141 N.E. 779, 780 (1923)); 25 Am. Jur. 2d Easements and Licenses§ 78 (at n.l); 39A
C.J.S. Highways§ 205 ("[H]ighway officers cannot remove or cut [trees along a highway! e.rceJJI
when it is necessary for the safe andji-ee use oft he highway .... ") (Emphasis added).
6 Ark. Code Ann. § 14-14-1102(b )(I )(A)(i) (Rep I. 2013) (implementing legislation for Ark. Const.
amend. 55, which in relevant pai1 under section 3 establishes the county judge's power "[t]o operate
the system of county roads."). See also Ark. Code Ann. § 27-66-206(b) (Rep!. 2010) ("Upon
declaring a road a county road pursuant to this section, the county judge shall take charge of the
road and cause the road to be maintained and repaired the same as other county roads."); Ark. Code
Ann. § 27-66-207 (Rep!. 2010) (regarding the dedication of roads to the public and the county
judge's acceptance of such roads "for perpetual maintenance."). The Honorable John Payton
State Representative
Opinion No. 2020-043
Page 4
county judge's authority in this regard involves an exercise of discretion.7 I believe
this discretion would generally extend to deciding that the removal of trees is
necessary to preserve the right-of-way.
As for the trees' disposal, I believe the county judge's discretion also generally
extends to the matter of deciding what to do with the trees and related products that
must be cut and removed. In many states, the adjoining landowner must be paid for
trees that are removed to maintain the right-of-way. The idea is that the landowner
retains his property right in the trees and has a cause of action for their value even
if their removal is necessary.8 But the Arkansas Supreme Court has articulated a
different rule. Instead, the Arkansas Supreme Court has concluded that because the
taker of an easement is "liable for the full value of the land embraced within the
easement" at the time oftaking-"as ifthe fee had been [fully] taken"-"an injury
which occurs to timber on the land when ... construction occurs is not compensable
separately."9 And particularly relevant here, the Arkansas Supreme Court has held
that rule is preferable because it "tends to eliminate future litigation over damages
sustained by reason of future additional construction on the easement."10 Thus, so
long as the removal was reasonable under the circumstances, I believe the county-
through the county judge and other county employees and agents-can decide what
to do with the cut vegetation.
Sincerely,
L.C:C;::::;;:>_ L. //~17
LESLIE RUTLEDGE
Attorney General
7 See Reding v. Wagner, 350 Ark. 322, 327, 86 S.W.3d 386, 389 (2002) (citing the county judge's
constitutional and statutory authority and stating that "county judges in Arkansas are given the
executive power to make discretionary decisions regarding the operation of the system of county
roads.").
8 See e.g. Brooks v. Bess, 135 Me. 290, 292, 195 A. 361, 362 ( 193 7) ("As to everything except the
public right of passage and the incidents thereto, the land was the prope11y of the plaintiffs .... They
have a right to recover for the defendants' trespass thereon and to be paid the value of the trees he
cut and carried away.").
9 Cramer v. Ark. Okla. Gas Corp., 316 Ark. 465, 467, 872 S.W.2d 390, 392 (1994) (citing Ark!a
Gas Co. v. Maxey, 245 Ark. 698, 415 S.W.2d 52 (1967)).
io Id.