289 S.W. 697 | Tex. App. | 1926
The appellant assigns as error the refusal of the court to give a requested peremptory instruction to the jury to return a verdict in its favor. The proposition relied upon presents, in effect, the point in view, that there is no proof of use of the railway crossing as a passway by the public or the appellees inconsistent with and adverse to the continuing rights of the railway company, continued during the statutory period of limitation of ten years. It is believed that the evidence warrants the above contention of the appellant. While the proof is clear that a road leading through the appellees' premises, and thence across the railway right of way and track, bad been used by the public generally and the appellees particularly for the whole period of limitation of more than ten years before the closing of the crossing in February, 1923, there is nothing in the evidence to show that this use was not merely permissive. There is not the slightest evidence that the public or the appellees ever claimed, or asserted, or did any act indicating a right to use the railway crossing as a passway, except by merely passing over it, and this use did not materially interfere with the use thereof by the railway company. There is no evidence that the road was ever worked or maintained as a public way. The evidence showed that at the time the *700 railway line was built in 1875 a road or passageway, running north and south, led by the place in suit.
At the time the railway was built, the railway company established a wood and tie yard on its right of way, and at the same time constructed a crossing over the railway track at the place where the dirt road passed. The tie and wood yard was established by the railway company to be used for delivery and storage of ties and wood purchased by it from contractors. The crossing was a necessary and convenient passageway across the track for wagons hauling and delivering ties and wood to the yard. The yard was maintained for the delivery of ties, and the crossing was kept open and continually used by tie haulers from 1875 to about 1916, more than 40 years. February 9, 1923, the railway company completely closed the crossing. Also, as testified, "Eveybody used it that wanted," meaning the public generally, to pass and repass. The use of the crossing by the public and the appellees did not in any wise interfere with the use of the tie yard or the crossing by the tie haulers or the railway company. It was generally known and could plainly be seen by any person that the tie yard was being kept and maintained by the railway company, and that the crossing was kept open and maintained by the railway company for the convenience and necessary use of its tie contractors. In no wise, as admitted, was the roadway, before or since 1875, a public road as established by the commissioners' court or worked under its orders. It was never worked or maintained by the labor of the members of the public or the plaintiffs in this suit, It was never a roadway dedicated as such by the owners of the land. The roadway was, as proved, prior to 1875 and up to 1902, merely a passway used generally, running through uninclosed and uncleared lands. The roads intersecting this roadway were mainly roads leading to sawmills, and used, Inferably, for the purpose of getting and drawing out logs from the woods. And since 1902 the road has never been worked as a road by the public or any one. During all such time the road, as well as the crossing, has been used by the plaintiffs, as well as anyone that wanted to do so, merely for passing and repassing. Such proof entirely negatives any presumption or inference that the public have used the road and maintained it as a public highway. And the evidence negatives any intention or purpose on the part of the railway company to recognize and acquiesce in any claim that the road was a public highway by maintaining a crossing over it.
Accordingly, in view of the evidence, it cannot be successfully contended that the appellees have acquired a right to use the railway crossing as a passway by prescription. The burden of proof was upon the appellees to establish a right by prescription over the crossing. Ry. Co. v. Wilson,
In order to obtain a right by prescription, the circumstances attending its use must be such as to make it appear that its use was accompanied by a claim of right, or by such acts as manifest an intention to enjoy it adverse and hostile to the owner. Tolbert v. McClellan (Tex.Civ.App.)
The Baudat Case, supra, is relied upon by appellees in this case. The testimony in that case showed not only use of the road by the public generally, but of "its having been worked and looked on as a public road" for about 50 years. This shows its use was accompanied by a claim of right on the part of the public. And there was no other explanation of the construction or use of the crossing than "as a public crossing," which would tend to show recognition of the road as a public highway. The facts are essentially different from those of the instant case.
The judgment is reversed, and judgment is here entered in favor of appellant, with all costs of the trial court and of this appeal. *701