No. 2383. | Tex. Crim. App. | Dec 18, 1901
Lead Opinion
Appellant was convicted of obstructing a public highway, and his punishment assessed at a fine of $5.
It appears from the statement of facts that the road alleged to have been obstructed ran through the town of Neches, which had been laid out in lots and blocks. The road ran across the lots and blocks purchased by appellant from the New York and Texas Land Company. This company had previously received a deed for said land from the International Great Northern Railroad, but the deed of the conveyance was not shown; nor was it shown when the International Great Northern Railroad acquired title. It was shown, however, that the road ran through the ground occupied by said lots for some twenty-five years or more, and that said road had been worked by hands allotted to work it by the Commissioners Court of Anderson County, and that the public had traveled and used it as a public road for as long as twenty years. There was no evidence of any condemnation proceedings as to said property for road purposes, nor was there any evidence that the owner or owners thereof had ever received any compensation. About April 30, 1901, appellant built a fence around the lots he had bought, which obstructed the public road running over the same. It is contended by appellant that the evidence is not sufficient to support the conviction, citing in support thereof Smith v. State (Texas Criminal Appeals), 40 Southwestern Reporter, 736. That case merely lays down the proposition that a mere permissive use for twenty years of a road over the land of another is not sufficient on which to base prescriptive right in the public to the road. That was not a case where the commissioners court had created the road a public one, and had assigned hands to work the road, and the same had been continuously used by the public for a series of years, as appellant seems to have concluded. Hence that case is not applicable here. The law with reference to the facts in this case has been thoroughly reviewed and discussed in the cases of Dodson v. State (Texas Criminal Appeals), 49 Southwestern Reporter, 78, and Ward v. State, 42 Texas Criminal Reports, 435, 1 Texas Court Reporter, 565, and we do not deem it necessary to add anything to what we there said. Under the authority of those cases, the judgment herein is affirmed.
Affirmed.
Dissenting Opinion
The proposition on which the State claimed that it was a public road was that the public had, on account of long usage of the same, acquired a prescriptive right to this certain property as a public road; and it is urgently insisted that the burden was on the State to show that none of the owners of said land labored under any disability during the period of prescription and cites us to City of Austin v. Hall (Texas Supreme), 57 Southwestern *440 Reporter, 563. That was a case where plaintiff, Hall, sought to recover damages occasioned by defendant city of Austin constructing the dam on the Colorado River which overflowed the road which plaintiff claimed was a public road, and in effect destroyed said road. That case was certified by the Court of Civil Appeals (48 Southwestern Reporter, 53), to the Supreme Court, the following statement being made as to the situation, to wit: "It was not shown that the land over which the road runs had ever been condemned in the manner prescribed by statute, or donated by the owners thereof for a public road; and the plaintiffs sought to establish the fact that it was a public road by prescription, resulting from long-continued use by the public. The road extended across various tracts of land. As to some of these tracts the evidence does not show who were the owners during the prescriptive period, and it does not show whether any of the owners were sui juris during the time referred to. In fact, there was no direct proof that the title to the tracts of land referred to had ever passed out of the State." Upon this statement the following question was certified to the Supreme Court: "In order for the plaintiffs to establish a prescriptive right to the road, was it necessary to show that during the prescriptive period the servient estates — the various tracts of land against which the prescriptive right is claimed — were owned by persons free from legal disability, and against whom limitations or prescriptive right could be acquired by adverse use?" To this question the Supreme Court replied in the affirmative. It was further remarked in this connection: "A right claimed by prescription rests upon the presumption that the owner of the land has granted the easement, and the grant has been lost. To sustain this claim, it must appear that the use upon which the right is predicated has continued the requisite time, during which the owner was not under disability to resist the claim," — citing various authorities. It occurs to me that the question here is of a similar character; that is, before the State of Texas can recover a fine from the owner of the land for obstructing the road, all the conditions which would give a prescriptive right must be shown; and it must be shown that during the prescriptive period the owner or owners were in condition to make the grant, and were not under disability to resist the claim. I do not believe, therefore, the State discharged the burden imposed upon it, as no attempt was made to show that the parties who had formerly owned the land were not under disability. Under this view of the case, I think the judgment should have been reversed.
Dissenting Opinion
I dissent from the views expressed in the majority opinion and refer to dissenting opinion on the original hearing, and also refer to dissent in Ward v. State, 42 Criminal Reports, 435 1 Texas Court Reporter, 565.
Addendum
The motion for rehearing is overruled.
Motion overruled.