83 S.W. 874 | Tex. App. | 1904
We adopt appellant's statement of the nature of this suit, which is substantially correct, as follows:
"This is a suit instituted by the appellees, R. F. Scott and A. L. Stephenson, in the District Court of Lamar County, Texas, on the 7th day of May, 1903, asking for the issuance of a mandatory writ of injunction commanding the appellant Evans to remove certain obstructions placed by him on the road in controversy, called the 'Evans Lane,' and an order perpetually enjoining him from closing up said road.
Plaintiffs claim that the road in question is a public road; that it had been dedicated by the defendant Evans and the abutting property owners to the public as a highway, and further claim that the public had acquired a right to the use of the said road as a highway by prescription. The road in controversy is a lane running east and west on the north side of appellant's tract of land, and intersecting another road running south at the west boundary line of a farm owned by appellee Scott, and forming an outlet, but not the only one, from said farm to the main public road, leading to Paris, the market and post-office of the people in that vicinity. Plaintiffs allege that the closing *376 of the road in suit will greatly damage the rental value of the plaintiff Scott's farm, and will greatly inconvenience the plaintiff Stephenson, who is a tenant on said farm, in getting out to his market and post-office at Paris.
"Appellant answered by general and special exceptions and by general denial, and specially denying that he or his grantors had ever dedicated the said road as a public highway, or that the public had ever acquired any prescriptive right to the use of the same as a highway, and alleging that the use of the same by the public had been merely permissive and under no claim of right to the road as a public highway." Insofar as the allegations set up a right to the roadway under the doctrine of necessity, they were abandoned in the trial court.
There was a jury trial December 31, 1903, and verdict and judgment for appellees, perpetuating the injunction.
The road in question is a narrow lane, about 500 yards long, about twenty feet wide at one end, thirteen feet wide at the other end, known as the "Evans Lane."
1. Appellant's first assignment of error complains of the refusal of the court to permit him, while on the witness stand, to answer the following question: "State to the jury whether or not the plaintiff Scott, about five years ago, proposed to you that you and he should place gates across each end of the road in controversy and close same up, and that you and he each carry a key to said gates; and that when you objected to this because of the inconvenience it might cause others, the plaintiff Scott stated to you that the land was yours and you had a right to do as you pleased with it? It is claimed that had the witness been permitted to do so, he would have answered this question in the affirmative. We think there was error in excluding this testimony. One of the questions of controlling importance in the case was whether or not the public had acquired the right to use the road in controversy by prescription. In order to establish the affirmative of that issue it was necessary to show that the general public, under a claim of right, adverse to the owner of the land, had used the road as a highway continuously, without interruption, for the necessary period of prescription. If the use of the road by the public was only permissive, and not adverse, there was no basis on which the right of way by prescription could rest. Appellee Scott was one of the most interested and frequent users of the road in question, and the character of the use made by him fairly represented the nature of the claim and right of others who used it. If Scott used the road in recognition of or subordination to appellant's right of dominion over it, such use was a pertinent fact or circumstance to be considered by the jury in determining the issue of adverse user on the part of the public.
2. Complaint is made of that portion of the court's charge defining dedication and prescription. It is insisted that there is such a blending of the two definitions and the grammatical construction thereof is such as to confuse and mislead the jury to appellant's injury; and that the jury was misled thereby into the belief that the mere use of a roadway for the term of ten years was sufficient to create a presumption of a dedication of the same to the public. There is foundation for the *377 criticism made, and the vice in the charge should be avoided upon another trial. If definitions of these terms are demanded, the same should be given separately, and in clear and appropriate language expressing the legal signification of each.
3. Appellant's third assignment of error complains of the following clause of the court's charge: "And you are further charged that when at the time of the purchase of real estate there is a road or right of way used by the public, such as a public highway, or road used so long that there may be a presumption of a dedication to the public, the purchaser takes the land subject to such right." The ground of complaint is, that there is nothing in the pleadings authorizing such a charge. It is elementary that the charge of the court should be confined to the issues raised by the pleadings and evidence. This charge in our opinion embodies a question or principle of estoppel not pleaded. It is true the petition alleges that the road has been used by the traveling public and by the residents as a public way for more than twenty years, but it is also alleged in this immediate connection that the appellant and all others owning land contiguous thereto, had dedicated the road to public use. It is nowhere alleged that appellant purchased the land on which the road is located, subject to any rights which had been previously acquired by the public, and that he was estopped to deny such rights. Nor do the facts alleged show the acquisition of such rights and consequent estoppel. The charge is also erroneous in that it assumes that the land on which a road is located and used by the public as a highway has been appropriated or dedicated to public use, and that a purchaser of such land, by reason of such use, takes it subject to the public's right to so use it. The charge is so constructed that it may be read and understood as follows: When at the time of the purchase of real estate, there is a road or right of way on it used by the public, such as a public highway, the purchaser takes the land subject to such right, or if used so long that there may be a presumption of a dedication to the public, the purchaser takes the land subject to such right. The court doubtless intended to tell the jury that when land upon which a road is located has been either expressly or impliedly dedicated to public use, a purchaser thereof takes it subject to the right of the public thus acquired. The dedication vel non of the road in question to public use was one of the principal controverted issues in this case, and should not have been assumed as an established fact, as we think was done, although inadvertently, in the charge complained of.
4. The second paragraph of the court's charge is as follows: "If you believe from the evidence that the public used the road as described in plaintiff's petition, as a public highway, whenever it saw fit, without the leave of the defendant, and without objection from him, or those under whom he claims, and was in the uninterrupted adverse enjoyment thereof for twenty years, as alleged in plaintiff's petition, or at least for a period of ten years, and that he is preparing to and threatens to fence up said roadway, then you will find for the plaintiffs, irrespective of the fact whether or not the Commissioner Court of Lamar County had ever laid out another and different road, if you find such court ever took such action." *378
The objections urged to this charge are, (1) that the term "adverse enjoyment" is not defined; (2) that the jury was not told that such adverse enjoyment must have been continuous up to the time appellant attempted to reassert his dominion over the roadway; (3) that it fixes the term of ten years as the period of time which will ripen the use of a roadway by the public, unaccompanied by the assertion of any claim of right on the part of the municipal authorities of the county to control or manage said road, into a prescriptive right; (4) that it authorized a verdict for appellees upon the finding of a mere use of the road by the public for ten years, without objection on the part of appellant and the absence of any proof of permission. The appellant requested, in this connection, a charge submitting the issue of dedication, and instructing the jury, in effect, that before they would be authorized to find for appellees on the issue of prescription, they must find from the evidence that the public had used the roadway under a claim of right for a period of at least twenty years. In this requested charge the jury was told that the term "claim of right" meant "such a claim to the use of the roadway as a public highway, as was adverse to and opposed to the right of the defendant and his grantors to close said roadway, or exercise any private dominion over the same, and that they must believe that such claim of right, if any, of the public must have been asserted or shown by the public in its use of such roadway in such manner as would be reasonably calculated to put the defendant or his grantors upon notice that the public was using such roadway under such 'claim of right' and not by license or permission of the owner of the land over which such roadway was located." The charge was refused, and this action of the court is also assigned as error.
The court, neither in the charge under discussion nor in any other portion of the main charge, defined the terms "adverse" and "claim of right." In the absence of a special charge requesting such definitions, appellant would not be heard to complain of the omission; but the requested charge from which the above quotation is made, while erroneous, perhaps, in that it fixes twenty years as the shortest period within which the prescriptive right can be matured, was sufficient to call the court's attention to such omission and demand the preparation and giving of a charge covering the same. It is said that the use made of a highway upon which the right by prescription is predicated; "must not only be adverse, but must also be continuous and uninterrupted." The adverse enjoyment of the easement claimed in behalf of the public in this case must have been commenced and continued unbroken under a claim of right for the full prescriptive period, to avail as a bar to appellant's right to assume control of and close the road in controversy. Cunningham v. San Saba County, 11 Texas Civ. App. 557[
5. We think there was no error in the charge in the respect that the jury was told that in the event they found "that the public used the road . . . as a public highway, whenever it saw fit, without the leave of the defendant and without objection from him or those under whom he claims for the period of at least ten years," . . . to find for appellees, without regard to the assertion of any claim of right on the part of the Commissioners' Court of the county.
There were two theories upon which the appellees sought to restrain appellant from interference with the public's use of the road and the closing of the same. First, an implied dedication to such use by appellant and those under whom he claimed; second, the acquisition of the right on the part of the public to use the road by prescription. These respective claims of right to the use of a highway rest upon and are governed by essentially different principles of law. It is said that an implied dedication is one arising by operation of law from the acts of the owner and is founded on the doctrine of equitable estoppel. Elliott on Roads and Streets, 2d ed., sec. 123. It is essential in such case that the owner intended to set the land apart to the use and benefit of the public. This need not be evidenced by deed; "it is enough that there has been some clear, unequivocal act or declaration of the proprietor evidencing an intention to set it apart for a public use," and that there has been an acceptance on the part of the public. The length of time the road has been used by the public is of no consequence, unless it becomes important in connection with other circumstances to show an intention on the part of the owner of the land to dedicate it to the public. Oswald v. Grenet,
But was the jury correctly instructed as to the period of prescription or length of time a roadway must be used in this State by the public under an adverse claim of right in order to preclude the owner of the land upon which it is located from reasserting any control or right over it so long as it remains in public use? There is no evidence in the record that the Commissioners' Court of Lamar County ever set up any claim to the road in question as a public highway or worked or supervised it as such, and it is contended that in such case ten years is not the period of prescription, but that if a prescriptive right can be acquired in a highway by the public by a mere user, twenty years is the period. If the precise question has been decided in this State we are not aware of it, and in our research have failed to find the decision. In the case of Click v. Lamar County,
6. It is insisted that the following subdivision of the court's charge is erroneous: "But if you believe from the evidence that the said road was only used by permission, leave, license or indulgence of the defendant and those under whom he claims, it matters not for how long a time or if the use can, in view of all the evidence, be placed upon any other footing than a claim of a right to use said road as a public highway by the plaintiffs and the public, it would repel any presumption of a grant, and will be what is called a precarious use, and you will in that event find for the defendant." The errors suggested in this charge are (1) that it tells the jury in effect that they must believe the road was used by permission of both the appellant and those under whom he claims, when as a matter of law the prescriptive right of the public or of the plaintiff would have been defeated if the road had been used by the permission of either the appellant or those under whom he claims; (2) that it in effect tells the jury to find for appellant only in the event they can, in view of all the evidence, place the use of the road by appellees and the public upon some other footing than a claim of a right to use it as a public highway, without telling them how long such a claim must have been asserted by the appellees or the public, and that it must have been hostile to appellant's right to close said road.
If the permissive use of the road was an issue in the case by direct testimony, or necessarily arose from all the facts and circumstances of the case, the first ground of objection to the charge was well taken. That such an issue was recognized by appellees is manifest by a special charge given at their request upon the same subject. The undisputed testimony shows that appellant had owned the land over which the road ran for only about nine years. A prescriptive right in the public to use the road could not be created within that period of time, and such time would have to be tacked on to some portion of the time during which appellant's grantors owned the land in order to complete the prescriptive period of ten years. Nor are we prepared to say, in view of the facts of this case, that this paragraph of the charge is entirely free from the criticism made of it in the second specification of error named, and suggest that the same be so framed upon another trial as to meet and obviate the objection urged. This was the only paragraph of the court's charge wherein appellant's defense was attempted to be affirmatively presented; and at the request of appellees the jury was instructed, upon the same subject, as follows: "If you believe from the evidence that the plaintiffs and those under whom they claim and the public generally have used the road in controversy adversely and under a claim of right, at will, without any objection from the defendant and those under whom he claims, for as much as ten years continuously next before the institution of this suit, then I charge you that the burden of proof is on the defendant to show from the evidence that said road during such time was used only by permission, leave, license or indulgence of the defendant and those under whom he claims, and unless *382 you believe from the evidence that the defendant has established the same by a preponderance of the evidence you will find for the plaintiff." This special charge was also erroneous in that it placed upon appellant the burden of establishing by a preponderance of the evidence that the roadway was used by the permission, leave or license of both himself and those under whom he claimed in order to defeat the appellees' right of recovery. If such permission was shown on the part of either himself or those under whom he claimed, a verdict should have been rendered in his favor. The use of property by the permission of the owner is a recognition of such owner's superior right of control over it, and proof thereof in a case like this would rebut and defeat the claim of adverse use. This special charge was also erroneous in view of the special charge asked by appellant, to which reference has already been made in this opinion, in failing to define the term "adversely." Again, appellant's contention that the assertion of the right on his part to control and close the road by attempting to fence it, and not the institution of this suit, is the act that would interrupt the running of limitation or prescription, is correct; but it is believed that the facts and circumstances show that the attempt to fence the road and the institution of the suit were so nearly contemporaneous that the error in the charge in that particular would probably not authorize a reversal of the case. Such error, however, should not occur on another trial.
7. The special charge refused and made the basis of appellant's seventh assignment of error, as heretofore stated, placed the period of prescription at twenty years. The period of time necessary to mature a prescriptive right was discussed under appellant's fourth assignment of error, with the conclusion reached that ten years is the period in this State, and hence it follows that this assignment must be overruled.
8. Appellant's tenth assignment of error complains of the insufficiency of the evidence to support the verdict. A proposition advanced under this assignment is, that before appellees could recover on the theory of prescription, the burden of proof was upon them to show affirmatively that appellant and those under whom he claimed were not under legal disability during the prescriptive period to resist the use by the public of the road in question; that such fact was not established, and verdict should have been rendered for appellant. There was no evidence introduced on the subject. The case of City of Austin v. Hall,
Our conclusion is that the burden of proof is upon him who asserts a right of way over another's land by prescription to establish that the owners thereof were free from legal disability and persons against whom a prescriptive right could be acquired by adverse use. And in addition to the quotation from Mr. Washburn's work on Real Property, we cite in support of this conclusion, Saunders v. Simpson, 37 S.W. Rep., 165; Reimer v. Stuber, 20 Pa. St., 458; Woodworth v. Raymond,
For the errors indicated the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.