Case Information
*1 Ron. Otto P. Moore, Sr. Opinion No, V-675 County Attorney
Colorado County Columbus, Texas Re: The authority of the
Commissioners' Court to condemn an ease- ment over private pro- perty to enable fish- ermen to have access to river.
Dear Sir:
Reference.ls made to your.recent request which reads, In part, as follows:
"1. Does a number of private citi- zens, who call themselves the general pub-: UC, have a legal right to force a.land owner whose land abuts' Colorado river in Colorado County, Texas, to give or provide an easement or roadway over and across his private property in order that they or the general public may have a passageway to and from said river to fish therein?
“2, Does the Commlesloners Court of Colorado County have the legal right to condemn lands for an easement or public road over private property in order for ;~~:;;;ing pub110 to.get to the river
Vhe facts are a8 followa:
"From where U.S. Highway No.90 cross- es Colorado River at Columbus, Texas, there is a distance of about four or,flve Piles along said river there la no way to get to the said river except over prtvate property of the abutting land owners unless they fol- low the meanders of the river along Its banks. From time to time duringthe paat the public have been given perdsslon to go *2 . .
Hon. Otto P. Moore, Sr.., page 2 (V-675 )
across the said private property to get to the river, to fish, but from time to time the land owners have suffered damages and had trouble because of the wrongful acts of some of the ones going across said private proper- ty. Therefore the land owners gave notice that the public would not be allowed to go over their property. Since then a number of citizen appeared before the Commisslon- ers Court and asked that an easement or pub- lic road be made across said property In or- derthat the fishing public might have a passage way to and from said river in or- der that they might fish therein without having to go around the river banks to get that gates and a passage there, claiming way had to be provided at a distance of each mile along said Inclosures,
The question then arose as to whether or not Colorado County, acting through its Commissioners Court could legally condemn private property for an easement or a road- way to said river, to be used by the flsh- aping public to get to the said river to,flsh
therein, without having to follo# the banks and meanders of the said stream,
Inasmuch as your first question involves prl- vate rights, we are not permitted by law to answer same. Therefore, we shall confine our remarks to question Ho. 2 of your request.
Article 2351j V. C, S., provides, in part, ttit:
“Each commissioners court shall: . D ‘3- Lay out and establish, change and” discontinue public roads and highways. . + in Art, as
Article 6703, V, C. S., provides, f 0110ws:
“The commissioners court shall order the laying out and opaning of public roads when necessary, a S : ,,
In the case of Havenbekken v. Coryell County, *3 lion, Otto P, Moore, Sr., page 3
112 Tex. 422, 247 S.W. 10&j, the court said:
“Commissioners I courts are created by the Constitution, and are given by its express terms such powers and jurisdiction over all county business as are conferred by the provisions thereof, or by the laws of the state. The statutes confer upon such courts full power and jurisdiction to lo- cate, establish, and open public roads and to condemn the land necessary therefor. In the exercise of these powers they are courts of general jurisdiction, and the validity of their proceedings is to be determined by the rules applicable quired to such courts. Having ac-
jurisdiction of the subject-matter and of the party or parties, they may, ex- cept as restrained or prohibited by law, exercise su$h powers according to their discretion.
Inthe case of Bradford v. Moseley, 223 S.W. the court said: 171,
“What is a public road is in a measure dependent on the facts of each particular case, but the character of a road does no+ depend on its length, nor upon the place to which it leads, nor is Its character deter- mined by the number of people who actually travel upon it. Decker v. Nenard (Civ. App.) 25 S.W. 728; Elliott
on Roads, Sets. 1 to 7. A road may be established which is a cul-de- sac*, Id. A road open to the public is a public road, thovh one person may be most benefited by it.
In Vol. 1, paragraph 9, 4th Ed., Elliott on Roads and Streets, page 11, it is stated, in part:
“Public roads are such as are open to the public and are under the control of the state nor its governmental
lnstrumen- talities, as counties, townships, road dis- tricts and local subdivisions of a similar oharac ter a Such roads are set apart to the public,,and are maintained at the public ex- pense.
Hon. Otto P. Moore, Sr., page 4
Also in the same Vol. paragraph 215, page 260, we find:
‘Roads and streets used by the public, with a right in all the public to use them, are undoubtedly public, and private proper- ty may be appropriated for the purpose of constructing such ways, The test is, not simply how many persons do actually use them, but, how many have a free and unre- stricted right in common to use them;~for, if the public generally are excluded, the W8y mu6t be regarded as a private If one; the public have the right to use ‘?..ae way’at pleasure one, although and on equal terms, in reality it is little public it is [8] used.
If it Is a public road, open to all who may desire to use it, the fact that it accommo- dates but limited portion of the publio, even where It is ordinarily used by only a single family, $+s been held to make no difference, . n
In the case of Bradford v; Rosely, supra, the court in passing upon the question of necessity of a pub110 road said:
n . . 0 It is obvious from the atate- rent of the case that the whole controver- g,“,“g$g;,;g;;: ggy$! g;:yg; ‘f& ty abuse the discretion .v.ested in it by law in opening the road?
“This Is true because it is a par,t of the statement of facts that evidence of 811 the statutory requirem*nts precedent to the opening of the road W8S offered, and that all were in due snd legal form, and the trial court found that the commlasion- ers I court determined that necessits for the rO8d existed, and that due notice-was given. Such finding
have been the verdict%: ~‘.i~~d@g~ ad&e&l
In the same oase reported in 190 S.W. 824, and reversed on’other grounds, the Court of Civil Appeals held:
hon. Otto P. Moore, Sr., page 5
“The inference therefrom is that the Legislature intended that the action of the commlssioners’ court 8,s to the nec- essity of the road, its proper locetion, the form of the petition, tion of its -signers, and all other save that relatl the qualifics-
issues II nfghgt;;fifg~~~ 1 shou1d be conclusive.
Also the Supreme Court in this case further aaid in’223 S.W. at page 173:
“latitude snd discretion is allowed commissioners ’ courts in the matter of open- ing roe.ds, a.nd, it being their duty to open road ‘when necessary,’ they may act upon their own motion. Huggins v, Hurt, 23 Tex. Civ. App. 404, 56 S.W. 944; Allen v. Parker, Tex. Civ. App. 536, 57 S;W, 703, writ of error denied.
“The language of the statute (subdi- vision 7, art. 2241) as to ‘the power and duty of the commissioners1 court as to courthouses and jails’ is exactly the same as is subdivision 3, relating to roads, and it has been expressly held that the exer- cise of that power is left to the disfre- tion of the commissioners’ court, 3 a
The answer to your second inquiry depends en- tirely Upon a fact finding by the Commissioners’ Court that the proposed roe& is neoessary for public use. Its discretion the statutes are complled’with, and the Commissioners1 Is final unless clearly abused. If all of Court finds that such public road is a necessity, then it is our opinion that the in view of the foregoing, Commissioners’ Court may condemn private property for such road.
SUMMARY Whether a public rO8d is a necessity is 8 fact question to be ascertained by the If the statutes are Commissioners’ Court. complied with and the Commissioners’ Court *6 . . .
Bon. Otto P. Moore, Sr., page 6 (~-6731
finds that a public road is a necessity, it may condemn private property for such a road. Bradford v. Moselej, 223 S.W.
171; Articles and 6793, V. C. S.
Yours very truly, ATTORREY GENERAL OF TEXAS ..I. j .r..,~d. .@, BA:lSW Bruce Allen Assistant M'!PORRRYGERERAL