Untitled Texas Attorney General Opinion ( 1961 )

jury 20, 1961
Honorable Fl. E. Opinion No. ~w-lOg6
county Attorney
‘Re: Whether the, Coaunlssloners~
Court may maintain a private
road of an individual who
dedicates the private road
to public uee and the dtdl-
cation Is accepted by the
commlaalontrst Court, and
Bar Sir: related questions.
Your request for an opM& from ‘our officeIs aub-
stantially stated ap follows:
Whether the Commlsalonerst Cbrt may
maintain a private road of an lndivlduhl
who dtdlaates the private road to public
use and the dtdlcatlon is acoepted by the
Commlsaionere~ Court and related questions.
Frominformation furnished us by you, It aipeak that
the lairdowner In qutetion haa txpreagly dedicated a private road
for public use and there ha8 also been an acceptance by the Com-
mls’aloners~ Coiirt of your County. Although a common law dedioa-
tion haa taken $laoe, attiain ~rtqulremtnts such as publlo purpose,
competency OS dedicator, and offer and aoceptance have been
complied with. Thti Commlsaloners~ Court holds the uat of the
dedloattd property In trust for the publtc.
Ae you stated ln your requtet; Bornedifficulty was
encountered in the paet when the County maintained private made
at public txpenee. We must assume in thla aaee. that the landowner
bad a public purpose ln mind and that the Comm.lsslanerslCourt
acted reasonably ln the absence of a showing to the contrary.
Here also the road ln question dots connect directly with the
county mad system.
In nmy c&see improvements have been made by the Oommis-
slonera’ Court on property dedicated both txpreesly and iqplledly,
and.acqulescenot therein by the landowntre haa~been ueed to show
an Intention to detllcate. Tribble v. l%llaa RY. & Terminal Com-
@no, J S.W.26 933 Clv.App. 1929 , error ref. ), Ealctns v. Qarrl-
son, 273 S.W.2d 510 t Civ.App. 1955, error ref. n.r.t,) In YO’=
.
Honorable R. E. Way, page 2. (w-1096)
aIt;wtlon there la no controversy a8 to dedlcation,~htnce the
c0~issioners’ court may make any lf4rovements or use any oounty
machinery on property 80 dedicated.
your rlrat related question concerns a private. land-
owner’s petitioning the Commlssloners 1 Court to make his private
road a public one. If seven additional freeholdere join hlm in
the petItIon and ali requisites of Article 6705 et seq., Vernon’s
civil Statutea lava been complied with, then the Commisalonera~
Court may maintain such with any of Ita maChIIN3rY a8 they would
any other pub110 road.
Your second related question presents the altuatlon
wherein a private landowner petitions the Commlaslonerrr~ Court
to make his private road a public road. The question arlrres
as.to whether sufflclent necessity exists for a jury of view to
be appointed when aald road la traveled by the landowner’s family,
hIe married children, hle neighbors going to vlalt him and by any.
on& else who might have an occasion to travel to the landowner~s
home tither on buslnese or for pleasure.
Aa to whether a road 1a’“neceasary” a8 that word la
used In Article 6703, Vernon’s Civil Statutee, la entirely In
the diacretlon of the CommIaslonere~ Court, hence only a ques-
tion of iact is presented. This office only advises on quea-
tlona of law. Under Article 6703, the Commieslonere’ Court may
open public roads “when necessary. ’ Whether thIe particular
road will be of benefit to the public Is for your Commissioners(
.Court. alone to decide. A benefit to Individual8 is not necesaari-
ly lnconelstent with a benefit to the public. Set 21 Tex.Jur.,
555 et w., Highways, Sec. 17. When the ComaIssIonere~ Court
has made It8 determination, then the jury of’ View la to be ap-
pointed by said court by virtue of Article 6706 of Vernon’s civil
Statutea.
SUMMARY
Whenan Individual landowner
dtdiaatta hib private road to
public use, the Comaissloners~
Court may accept said road for
Honorable R. E. Gray, page 3. (``-1036)
the uee of the public and may
maintain It with county machinery,
Your0 very truly,
WILL WILSON
Attorney Qeneral of Texas
‘* .&Y2lst?M4
Fred D. Ward
Fm:lgh:ti Aeei&%nt
APPROVED:
OPINIONCOMWI!lTRE
tbrgah Nenbltt,
Chairman
Harris Toler
Virgil Pulllam
.(ul*rt mrgrayt
REVlHEDFORTHEA!tl'ORNEYQENERAL
By: Leonard Pasemort