27-66-403. Court order.

27-66-403. Court order. (a)(1) If the petitioner has not complied with the court's order under § 27-66-401 and paid into the registry of the county court the estimated sum, the court may dismiss the case without prejudice and provide that the matter may be refiled within one (1) year from dismissal in accordance with the Arkansas Rules of Civil Procedure. (2) If during the pendency of the proceedings the county court determines that the circuit court has jurisdiction over the matter, the county court may stay the proceedings or dismiss the case without prejudice and provide that the matter may be refiled within one (1) year from dismissal in accordance with the Arkansas Rules of Civil Procedure. (3)(A)(i) The evidentiary hearing may be held if: (a) At least sixty (60) days have passed since the initial petition was filed; (b) The landlocked petitioner has complied with the court's order under § 27-66-401; and (c) The landlocked petitioner has deposited the estimated sum under § 27-66-401. (ii) At the evidentiary hearing, all parties shall have the opportunity to present evidence and cross-examine witnesses. (B)(i) If after considering the report of the viewers, the evidence, the law, and all other proper and sufficient matters the court is of the opinion that it is necessary for the petitioner to have the road from his or her lands, dwelling house, or plantation to the public road or navigable watercourse, an order is to be made establishing the road not to exceed fifty feet (50') in width and determining the damages sustained by each owner of lands through which the access easement passes. (ii)(a) The access easement of ingress and egress to and from the petitioner's lands to, through, over, and across the respondent's lands shall be described in the final order or judgment of the court and shall be appurtenant to the petitioner's lands. (b)(1) The order shall direct return of excess funds, if any, to the petitioner and any further deposits necessary to be made by the petitioners for the payment of all costs and expenses, including reasonable attorney's fees and costs, accruing and remaining unpaid on account of the petition for the road, and all things relating thereto and following therefrom, including the view and survey of the road and damages sustained by each owner of the lands over which the road passes. (2)(A) If the respondent substantially prevails on the disputed issues in the case, the court shall award reasonable attorney's fees and costs to the respondent. (B) In determining whether the respondent substantially prevails on the disputed issues, the court shall consider the respondent's success on the merits regarding the: (i) Necessity of the road; (ii) Route of the road; (iii) Width of the road; and (iv) Damages to the lands over which the road passes. (c) The order shall state that: (1) The respondent retains title to the lands over which the road passes; and (2) The road is for an access easement only and is not an easement for any other purpose, including a public utility. (iii) The petitioner shall be solely responsible for the maintenance of the road established under this subchapter. (iv) The respondent shall have no responsibility for the maintenance of the road established under this subchapter. (v) A user of the road does so at his or her own risk and peril and does not have the right to file a cause of action against the petitioner or respondent for any injury to the user or the user's property. (b)(1) Either party may appeal to the circuit court from the final order or judgment of the county court within thirty (30) days from the entry of the order and not thereafter. (2) The review by the circuit court shall be de novo and for strict compliance with this subchapter and any additional violations of the due process rights of the parties.