Weber v. Chaney ( 1928 )

SMITH, J.

. This action was brought by Fritz Weber and wife to require J. T. Chaney to reopen a roadway running through his farm in Uvalde county. It appears that this road had been open to and indiscriminately used by the citizens of that vicinity for a period of more than ten years, but Chaney had closed it to travel in the year 1925, and, as stated, Weber and wife brought this suit to require him to reopen it to public use. Chaney resides on his farm, in his home, which is situated by the side of the road, which enters and leaves his farm through gates maintained by him.

The jury answered “yes” to the special issue:

“Do you find from the evidence that the roadway described in plaintiffs’ petition was continuously used and traveled by the public generally, whenever it saw fit, for a period of ten years or more next preceding the 16th day of December, 1925, substantially along and upon the same route on the west side of Little creek across the 244-acre tract of the defendant?”

And the jury answered “no” to the special issue:

■'‘Do you find from the evidence that such use and travel of said road on the part of the public was open and notorious and adverse to the defendant, and without objection by him?”

In connection with the last-quoted special issue, the trial judge, upon his own motion, instructed the jury that—

“By the term ‘adverse,’ as used therein, is meant an actual and visible use of the road, commenced and continued under a claim of right, inconsistent with and hostile to the claim of the owner of the land across which the road runs.”

And at the request of appellant the court further charged the jury as follows:

“No. 1. In connection with the use of the word ‘adverse,’ as contained in the main charge, you are instructed that the same means the use of the road in question by the public under such circumstances as were reasonably calculated to put the owner upon notice that the public was using the land under a claim of right for the period of time in question, and that such use was not by license or permission.

“No. 2. By the term, ‘claim of right,’ as used in the main charge, is meant a use of the land in question by. the public under circumstances reasonably manifesting that the public is using this road in question of its own initiative as if it owned the road and without seeking permission or consent from any one; and it is not necessary that the public should either believe or assert that it has a right to such use.”

Appellants submit their appeal upon the single proposition that—

“The verdict of the jury under the second special issue, to the effect that the 10-year user by the public *whenever it saw fit’ (as found under the first special issue) was not open and adverse, and without objection, is without any evidence to support it and at all events is against the great preponderance of the evidence, and the court erred in submitting said issue (as pointed out in'the objections to the charge) and afterwards in not setting aside said finding (as contended for in the motion for new trial). In this connection appellants show to the court that under the first special issue the jury found that the public used the road ‘whenever it saw fit,’ and the testimony of all of the witnesses is that it was used just as any other public road is used, and there is no testimony that the user was permissive or over protest or otherwise a limited user. The public traveled the road as if it owned it according to all witnesses.”

More than a score of witnesses testified to the character and extent of the use to which the road has been put during the past quarter of a ce&tury. It was conclusively shown, and the jury found, that such of the public as had occasion to use the road did use it as fully as they would use an established highway. Appellee himself so used it when convenient, as did his family, tenants, and employees. So was appellee fully aware of the use made of it by the public, nor did he ever object, or express any objection, to that use. But during the entire period of its use he kept it under such restraint as the maintenance of three gates across it imposed upon it. He kept these gates closed, and the members of the public using the way usually respected that restraint by closing the gates after passing through them. The way was never formally declared or made a public road by the commissioners’ court, and in 1926 that court denied the petition of appel-lee and others to make a public road of it. The county commissioner of the precinct embracing the road, who served as such continuously from 1910 to 1923, testified that this road was not a public road, and that he never had it worked because he had no authority to do so; that he “never heard anybody claim that to be a public road. During the time that I was commissioner nobody ever claimed that was public road, or requested me to work it.” It appears to be true that the commissioners’ court appointed road overseers for this road, or at least for the district embracing this road, at different times from 1898 to 1924, and that appellee himself was once such appointee. But the record warrants the implied finding that the road was never worked under these appointments, or otherwise; nor is it shown that appellee had any knowledge that such appointments were made.

We conclude that the evidence sustained the jury findings, and that these findings, when considered' in connection with the court’s instructions and definitions submitted with the issues, sustain the judgment of the court below. The evidence warrants the finding that the use made of the roadway by the public was a permissive use and enjoyed alike by the public and the owner of the ser-vient estate and his family, employees, and tenants. Tihe evidence further warranted the jury’s finding that this user by the public was never adverse to appellee, and amounted to no adverse claim of right' as against him. Such permissive use, in the absence of any adverse claim of right against the owner, could never ripen into a prescriptive right against that owner, so as to constitute the road a public highway. Benev. Soc. v. Cemetery Co. (Tex. Com. App.) 288 S. W. 812; Bauch v. Kahn (Tex. Civ. App.) 293 S. W. 259; Tolbert v. McClellan (Tex. Civ. App.) 241 S. W. 206.

The judgment is affirmed.