Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GRAALD C. MANN ATTORNEY GENERAL

Honorable Van Haile McFarland County Attorney Maverick County Eagle Pass, Texas

Dear Sir:

Opinion No. 0-3689 Re: Public Roads

Your request for opinion has been received and carefully considered by this department. We quote from your request as follows:

"I have been requested by the Commissioners Court of Maverick County to obtain your opinion in regard to the following state of facts:

"The Rohlader Brothers of this city have for the past 80 or 30 years been the owners of a small tract of land on which they have built a pleasure house, which they call the shade". During the time that they have been the owners of this place, the same has been open to their friends for oversight and weekend vacations during all times of the year. Of until about two years ago many people of Eagle Pass and visitors from the outside availed themselves of the open house at the shade".

"This land of the Rohlader" is surrounded on three sides by the Pabla pasture which changed ownership about two years ago. The generally accepted road to the shade runs through this Pabla pasture, and the former owners of the Pabla permitted free ingress and

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Honorable Van Haile Mofarland, Page 2

egress over this road to and from the ahook. This was over a duration of perhapg some 25 or more years, and the road thus used was also used for going through and beyond the Pabla jasture to the Paloma. "About two years ago Colonel Johnson purchased the Pabla pasture and has jleced a lock on the gate across this road. At first Colonel Johnson permitted two locks on the chain which bound the gate, one of the locks being his own to which he kept the keys, and the other being that of the Rohleder Brothers to which they kept the keys. Recently Colonel Johnson has removed the lock belonging to the Rohleder Brothers and placed his own lock there as the only one, and furnished the Rohleder Brothers two keys to it. "There is another outlet from the ahook in another direction, but the same is considered unsuitable besause it erosses several bad creeks which are sometimes impassable. "The Rohleder Brothers have requested the Comnissi ners Court to take some action in regard to this road through the Pabla pasture to the ahook, basing their request, apparently, on the theory that such road is a public thoroughfare by usage and preseription. "I have attempted to diseover the law governing such ease, and have not been able to determine whether the faste stated constitute said road a public thoroughfare. "Will you kindly give me your opinion: "First, as to whether the road is a public thonoughfare by virtue of the usage above mentioned; "Second, as to whether, if the road is a public thoroughfare by usage, the Commisgioners Court can take action and force Colonel Johnson to remove the look from said gate."

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Fionorable Van Haile MoFarland, Page 3

On Fobruary 20, 1941, this department wrote to you stating that we could not answer your first question because it was a question of fact. On June 13, 1941, you requested that we answer your second question.

Article 784, Vernon's Annotated Texas Penal Code, reads as follows: "Whoover shall wilfully obstruet or injure or oause to be obstrueted or injured in any manner whatsoever any public road or high-- way or any street or allay in any town or city, or any public bridge or oauseray, within this State, shall be fined not oxoroding two hundred dollars."

Sections 15, 15 and 28, Chapter IV, Highways, pages 540-1-2, 549-50g volume 21, Terss Jurisprudence, read as follows: " 15. In General. - As already noticed a right of public travel over land may be acquired without any establishment of a highway by procecdings under the statute. Also, as noticed hereafter, of ficial adoption or even recognition is not essential. One nonstatutory mode of acquisition is by dedication. Dedication may be by overt ast of the owner signifying his intention, the dedication being accepted by public use. Also, without any overt act on the owner's part, the public may in fact travel over his land in such circumstances that intent to dedicate it to the public use for highway purposes may be inferred. "Another mode of aequisition is by presoriptive right visiting by virtue of longcontinued use. Thus zublic use may be ovidenee of the necaptence of a dedication, or of the owner's intent to dedicate and the public's acceptance, or of a presoriptive right of use. "Dedication and preservation having been considered generally elsewhere, in the present chapter, starting from the fact of zublic travel over land whereon no highway has been statutorily established, we inquire as to the

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Henerable Van Haile MeParland, Page 4

significance which that use has to establish a legal right. In short, while some reference to theory is indispensable, we are here more concerned with applications of the doe trines of dedication and preserjption to particular fact situations. "1 16. Theory of Acquisition - Apart from instanees of public use where the land owner has otherwise manifested an intent to dedieate, public use connotes different theories in different Jurisdictions. In England acquisition of a higheny easement by public use in derogation of the ownership of the fee is based on implied dedication; in Sootland on prescription; while in Texas (as in other states of the Union) either theory is applied as the facts appear to warrant. According to eircumstances and the attitude of the owner, public user may be evidence that a road has been established by dedication or by preseription, or by both methods. A judgment decreasing that the easement has been acquired will be affirmed if acquisition by either dedication or preseription is supported by the evidence. "The olose relationshi p between preseription and dedication is illustrated by the fietion of a lost grant - or rather deed of dedication. "'Preseription' originally signified that the right was of unknown and probably undiscoverable origin, and that the right was anterior to the memory of anyone. This ob- security of origin was disguised by the fietion that the rieht had ite origin in grant, and that the grant had been lost. A feigned allegation of a lost grant could not be trevered by plos, but now that the atatute of limitations has been adopted by analogy, the fietion is regarded as a mere rebuttable presumption.

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Nonorable Van Haile MeFarland, Page 6

" 22. Adverse Use as Essential - Under the general 1 ow of title by limitation, possessicn must be hostile to the true owner in the sense of an intent on the part of the possessor to hold the land as his own, the statutory expression 'claim of right' being construed to signify the requisite that the olsimant must not have entered upon the land in aubordination to the owner. Claim of right adversely to the owner is also essential to prescriptive title to any easement, inelud. ing a highway easement. "'The general rule is that, before a highway can be established by preseription, it must appear that the general public, under a claim of right, and not by mere peraiesion of the owner, used some defined way, without interruption or substantial change, for at least the longest period of limitation prescribed by statute in an action involving the title to land." "Obviously, the use cannot be adverse where it is, and always has been, by express permission of the owner in terms indicating that he is to be free to withdraw permission. The same is also true where a tacit peraiesion appears. If the rule were otherwise, every license would mature into a legal right, and unneighborly conduct would be encouraged - which is contrary to the policy of the law."

Section 218, Highways, 21 Texas Jurisprudence, pages 732 and 733 , reads as follows: " 218. Proof by Pablic Use and Official Recognition - The statutory term 'public road' cannot be read as excludins a way to which the public have acquired a right of use without the statutory proceedings. Although there may be no evidence of stetutory establishment, the road may be none the less a legal one, obstruotion whereof is a penal offense. Evidence

*6 Honorable Van Baile MoFarland, Page 6 thet the road is in law a bigheny may be shown by long-ontinued use and recognition by the county authorities working the road. An order of the commisioners ^[1] court declarIng a road of nonstatutory origin to be a public road of a designated class is likewise sufficient. "The best evidence that hands have been assigned to work the road in question is by production of an order by the commisioners ^[1] court to this effect. Unleas a predicate be laid by proof of the destruction or loss of the county records, the oral testimony of the comminisioners that they appointed overseers and apportioned hands is not edipatent evidence of those facts."

Seotion 25, Highways, 21 Texas Jurisprudence, pages 261 and 588 , reads as follows: "| 25. Highway Vel Non as Question of Fact - whether a public right of way has been acquired by dedication or by preseription is generally a question of fact. In order to authorize the withdrawal from the jury of an issue as to the creation of a right of highway by dedication or prescription, the evidence must be of such a character as to leave no room for ordinary minds to differ as to the oinclusion to be drawn from it. Leaving a strip of land open for public use, and selling lands adjoining under deeds calling for it as a boundary, is oogent but not conelusive evidence of a dedication - at least where the land is not designated in the deeds as a public road. The intent may be to permit the public to use the land under revocable license, and therefore the charge should lave it open to the jury to find what the intention was in fact. Conversely, in the complete absence of evidence indicating thet the public use is not merely permissive, it seems that a directed verdiot for the owner is in order. On the other hand, a directed verdict for olaimant of the easement is not justified where the testimony is inconclusive as to whether the use was permissive or adverse."

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In an action for injuries resulting from a land- owner's obstruction of a road on his premises, evidence that the public had used road from ti e imemorial and had worked and maintained it without objection, was held to raise an issue for the jury as to whether the road was a public road. See the case of Hoffman v. Bynum, 101 S. W. (Ed) 600.

The facts given us are rather meager. No facts are given us as to the nature of the use of the road, as to whether it was adverse or permissive. Nor are there any facts given us as to whether or not the road has ever been worked by the county or the public.

We would respectfully advise that you seoure the complete facts relative to the use of the road. When you have done this you will then be in a position to determine for yourself, under the principles enunciated above, as to whether or not the evidence would be sufficient to raise an issue for the jury as to whether or not the road was a public road.

APPROVEI JUL 16, 1941

FIRST ACHISTANT ATTORNEY CENEHAL

Very truly yours ATTORNEY CENEHAL OF TEXAS

By

Wm. J. Fanning Assistent

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