Meckel v. Davis , 1931 Tex. App. LEXIS 1161 ( 1931 )

The use of the road by the owner as others used it possessed no significance. The public used this road without objection or protest, but on the contrary the owner placed gates, thereby saying to the public you are to pass this way, this indicates a permissive right to user. A person has no right to allow the public to use a road for a number of years, then before the expiration of the statutory right of possession, after rights have grown up, suddenly without rhyme or reason stop them. The fact that no one was heard to object to the so-called restraint, by word or act, cannot be construed as to them to mean they acquiesced. Acquiesced to what?

My understanding is that the continued and undisputed claim of right is evidenced by the public use and not as claimed to be a subservience. It will not do to say to show their claim as a user they should assume the burden of maintaining and keeping the road in repair. It is not shown that any agreement existed or obligation was imposed by its use.

The rule of acquiescence has no application to a person who seeks to hold property by user. The two propositions are antagonistic. We do not quite understand the meaning of our associate in his opinion.

Of course, we understand one way to secure a road is by condemnation, but that is not the only way. I cannot agree with my associate that the finding of the jury is without evidence, nor do I agree to the statement that the original opinion is in conflict with Weber v. Chaney (Tex.Civ.App.) 5 S.W.2d 213, which is obviously distinct.

A careful reading shows the use of this road by the public for many years, more than ten, at the same time some work had been done by some of these users, all with the knowledge of the owner, who, if he did not give a direct right to its use, did so by his knowledge and presumed assent. Boone v. City of Stephenville (Tex.Civ.App.) 37 S.W.2d 842.

We have no doubt as to the correctness of our views as expressed, so the judgment must stand affirmed, and I dissent from the majority opinion, this day handed down.