Case Information
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September 28, 1973 The Honorable Gerald W. Schmidt Opinion No. H- 111 County Attorney Re: Whether the ltrtute,
Gillerpie County Frederickrburg, Tcua 78624 of limitation0 applier
to rorde dedicated to public uec but either never used as l uch ,or ured end later aban- Dear Mr. Schmidt: bndoaed?
You hxve requerted our opinion am whether certain rtatutee of limitationmay have run againrt Gillsepic! County bar itr claim of title to county roadr in 1645 to public we. You etrte that mome of the roadr have been ured the public tranrp?rtrtion purporer while otherr have not. and thet prerently all of the roadr ia controversy have fallen into diruie and being fenced qy.privrte ownerr.
An important upact of your queetion ir that +e roadr have been dedicated to the public. Apparently, German hrmigr@tion Company platted the rordr in conjunction with plan townlote and outlotr in Frederickmburp and rubrcquently filed plea in the record8 of Gillespie In opinion, the male lotr pecified by the plan by reference County. to the recorded plet would be rufficient to conrtitute a dedication the Adamr v. Rowlrr, 228 S. W. td 049 (Tax. 1950); Andeiron v. Tell Timberm Core, 2d 16 (Tax, 1964).
The remaining quaetion ir whether any peraon could acquire by occu- pancy or rdveree poemereion my right or tttlo to any of the roadr 80 r to bar claim of title by the county.
Prior 1887 there wan no l tatutory inhibition againat a perron acquir- ing title by limitation land on which a roid rtreet had been eetebliehrd.
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The Honorable Gerald W. Schmidt, page 2 (H-111)
Oatrom v. City of San Antonio, 14 S. W. 66 (Tax. 1890). And, in fact, courta did permit the statute oi limitation to run rgainat a city when adverse poaaeaaion warn ahown a sufficient number of yeara. Neblett v. R.S. Sterling Investment Co., 233 S. W. 604 (Tix. Civ:Appt , Beau-- mont, writ ref’d. )
However, in 1887. the Legialature enacted a statute now found am
Article 5517, V. T. C. S. It provider:
“The right of State, all counties, incorporated cities and all school diatricta . . . ahrll not be barred by any of the proviaiona of thia Title, nor shall any person ever acquire. by occupancy or adverse poaaea- aion, any right or title to any or portion any road, atreet, alley, aidewalk, or grounds whichbelong to any town, city, county, or which have been donated or dedicated public use . . . which have been kid out or dedicated in my manner to pub1i.c uae. . . . ‘I This provision has frequently defeated claims by individuals to rights in land dedicated es public Adama v. Rowlea. l upra; Coomba v. City Houaton. 35 S. W. 2d 1066 (Tex. Civ. App.&.lvcrton, 1934, no writ); Texas I P. Rv. Co. v. Reeae, W. 2d 249 (Tex. Civ.App., Texarkana. 1942, no writ); County Calhoun v. Wilson, 425 S. W. td 846 (Tex. Civ. App., Corpur Christ{. 1968, writ ref’d., IL r. a. ).
In our opinion no righta hbve bean acquired any individual,in roads public use in Gillespie County unleaa acquired prior to 1857. or acquired mince 1955 under the proviaiona of Article 6703e. V. T. C. S. (Acta 1955. 54th Leg., p. 1625, ch. 525) which provider:
“Whenever the use of a county rord hea bec ome l o infrequent that the adjoining land owner or ownera have, nclored maid road with a fence and maid road ham been continuously under fence for s periodof twenty (20) or more, the public ahell have no further raement right to maid road unleaa and until said road ia re-eat&limbed . . . i provided however, t&t this Act #hell not apply ccema roada reasonably neceaa~ry to reach edjoining lend. I1
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The Honorable Gerald Schmidt, pbge 3 (H-111) private rights were acquired
It is therefore opinion that, unlearn prior to Article 5517, V. T. C. S., excepts counties from the operation mtute of l&ttation with respect to dedicated roads etreeta. We are,further of the opinion that, because the specific restrictions imposed by Article 5517, K.T. C. S., upon.,tcquiait%n ofrtitl~by~~dv&ie:poiiaaaioa, the:10 bnd 25 year l tbtutea of limitation (Articles 5510 and 5519, V. T. C. S. ) do not apply rode streets either belonging to Gillespie County or the public use. Since 1955, Article 6703~. V. T. C. S.-, dedicated tb it for ham made B narrow exception to the general rule of Article 5517 by permit- ting 8 person acquire rights in rorda’ii he ham fenced land continuously twenty and if road is not now “reasonably neceaabry” to pro- vide access to adjoining property. Whether much rights have been acquired under that Article would depend upon the determination factual queationr to make. which we not permitted
SUMMARY where B roadway ham been enckaed by Except by an adjoining owner continuously for twenty fence years or more, end tha roadFey is not reasonably neceaaery reach adjoihing’ land, mince 1887 roadways belonging a county to B countyfor pub: lit have not been subject to adverse poaaeaaion . under Articles 5510 and 5519, V. T.C. 5. Very truly yours, APPBOIj,ED:
Opinion Commitbe
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