Untitled Texas Attorney General Opinion ( 1950 )

Awwt 25, 1950
Hon. Roy L. Hill opiniorr ao. V-1098.
County Attorney
Runnels County Re: Authority of the Coun-
Ralllnger , Texas tg to prevent a land
owner frcm closing a
Dear SFr: road across his land.
Your request for an opinion reads in part as
follows :
‘In the year 1939, a number of citi-
zens together with the owner of land, over
which the road was established, agreed on
the community using the road across his
ranch; t&s was a permissive and agreeable
‘,use on the part of the owner. They sought
help from the County in maintaining the
road, and the Commissioner used his ma-
chl.nery in gram, filling in, building
cattle guards, etc. on the road, and such
work is still being done, as I understand.
The road is nov, and has been used by the
general publio, and a school bus route has
been maintained and Is nov being so used
on this road. he son of the original ovn-
er now wants to close the road . . ."
You ask vhether the landovner csn close the
road in question.
It was held In Evaus v. Scott, 83 S.N. 874,
877 (Tex.Clv.App.1904):
”
There were two theories upon
vhlch ihi ippellees sought to restrain ap-
pellant from Interference with the publlcts
use of the road and the closing of the same;
First, an Implied dedication to such use by
appellant and those under whcunhe claimed;
second, the acquisition of the right on the
part of the public to use the road by pre-
scription. These respeatlve olalms of right
to the we of a highway rest upon and are
678
Hon. Roy L. Hill, page 2 (V-1098)
governed by essentially different princi-
ples of law. It iS eaid that an Implied
dedication is one arising by operation of
law from the acts of the owner, and is
founded on the doctrine of equitable es-
top 41. Elliott ,011Roads and Streets (26
It is essential in such case
%k 1 !d”,&er Intended to set the land
apart to the use and benefit of the pub-
lic. This need not be evidenced by deed.
‘It Is enough that there has been scme
clear, UmqtiVocal act or d8claFatlon of
the proprietor evidencing an intention to
set it apart for a public use, * and that
there has been an acoeptauce on the part
of the public. The length of time the
.. road has been used by the public is of no
consequence, unless it becomes Important,
in connection with other circumstances,
to show an intention on the part of the
owner of the land to dedicate it to the
public e Oswald v. Grenet, 22 Tex. 94;
Preston v. City of Navasota, 34 Tex. 684;
City of Corslcana v. Anderson (TexXlv.
App.) 78 S.X. 261; Elliott on Roads dc
‘. Streets, Sg 160, 161. Unlike an implied
dedication, which as ve have seen, oper-
ates by way of es~oppel ln pals rather
than by grant, a right by prescription
rests upon the presumption that the own-
er of the land has granted the easement,
and that the grant has been lost. City
of Austin v. Hall. 93 Tex. 591, 57 S.Y.
563; Saunders v. Simpson (Tenn.Sup.) 37
S.W. 195. To sustain this claim it is
not neaessary to show intent on the part
of the owner of the land to set apart the
road to the use of the public, and the
e:ement of acceptance Is not Involved;
vhereas the length of t-8 the’road baa
been used by the public is the foundation
upon which the cla$m rests, and the use
upon which the right is predicated must
have contlnued uninterrupted under au ad-
verse ‘claim of right’ for the full pre-
scriptive period. . . . The public’s
right of prescrlptlon to a highway is not
dependent upon the recognition of that
right by the mnlclpal authorities of the
i
Ron. Roy L. Bill,
679
page 3 (V-10@)
county, but is acquired by adverse use
for the time arid In the manuerprescrlb-
ed by the rule8 of lav to which we have
adverted. Acts done by the munlclpal au-
thorities of the county In reoognltion of
the road in question as a public hi huay
vould doubtless be facts or circmm f ances
evidenci the aCCOpbtnC8 of it under ap-
p41144~s 2 heory of dedication, but the
absence of such acts vould not prevent the
acquisition of the right on the part of the
public to use the road by preecriptlon. Pub-
lic use i.wthe mamer stated and for the
necessary period of prescription establishes
the public right as firmly as if It had been
created by an express grant. Furthermore,
. a suit to establish a right to use a way
claWed by prescription is in the nature of
or analogous to a suit to recover land,
based upon a title acquired by adverse pos-
session under our statutes of llmitatlon,
although the interest which may be acqtir-
ed by prescription is only an easement, and
not en estate In fee; and, where the pre-
scriptive period, as in this state, is not
fixed by statute, we conclude the longest
period of limitation In actions for land,
which 1s 10 years, till,by analogy, apply.
Hence we hold that 10 years is the erlod
of prescription rln this state, and -the
court correctly so charged.'
It was held in Philll~s v. T. dc P. Ry. 296 S.Y.
877, 880 (Tex. Comm.App.1927) that "the ublic may by ad-
verse use for the prescriptive period, &l.ch 1s ordlnarl-
ly 10 years in this state, acquire the line of hlghvay in
a road though the counties have not recognized it as such.*
In Black v. Terry Countg, 183 S V.26 685, 687
(Tex.Civ.App.l944), it was held:
"The law is vell established in this
State that whenever the ovners of land ob-
tatamwledge of the fact that the county,
the right tomintaina roadaud,
acting "&hrough its road overseer, takes ac-
tual end visible possession of the land over
which It runs by vorklng it or Preparing it
for public travel, thereby asserting a Clair
.
Hon. Roy L. Rlll, page 4 (V-1098)
to it for the public in such manner that
the ovners, if present, would have ascer-
tained the fact that the road vas being
established In behalf af the county and
the public general1 the period of llm-
ltation or prescrip enIon begins to run.
The testimony shows that J. S. Black had
possession of the entire Section 25 until
his death and since MS death, J. Ii. Black
has nW.ntained possession for himself and
the other appellants oonstantly and con-
tinuous1y. He admitted in his testimony
that there probably was a road or passage-
vay along the north line of Section 25
ever since the Forrlster schoolhouse was
erected, and stated that he put some of
the section In cultivation in 1928. But
whether any of the appellants had actual
know14 4 of the road or not, according
to the “&estlmony it was laid out by the
citizens of Terry County and worked or
‘scraped out’ in 1924 by the county au-
thorities and graded by them in 1927.
Even If the appellant, J. B. Black, who
represented the other appellants, did not
have actual knowledge of the establish-
ment of the road, he vas charged with such
tiowledge because he undoubtedly would have
ho!in about it if he had been present at
the time and would have lmown of the pub-
lic travel over it at any time afterwards.
These acts of establisblng the road and
the general travel over it having occur-
red more than nfneteen years before appel-
lants filed this suit or made any effort
to discontinue the road, the County and
the public acquired title to it by pre-
scrlptlon.”
. ..
In view of the foregoing, it is ow oplnlon
that vhen a county maintains a road by working it or pre-
paring it for public travel, thereby asserting a claim to
it for the public in such a manner that the road is es-
tablished for the benefit of the county and the public
generally, the period of prescription begins to run. The
period of prescription in this State is 10 years. Uheth-
or the Poad In question has been acquired by Runnels
County by rescription is a fact question which this of-
fice canno ii answer.
I
.._
681
Hon. Roy L. Hill, page 5’ (V-1098)
SUMMARY
A county may acqoire a public road by
prescription, which Fn this State is 10
years. Uhena countymalntains a roadby
vorlslng it or preparing it for public trav-
' 41, thereby establishing a claim to the
road for the public in such a manor that
the road is establlshed for the benefit of
the couuty and the public generally, the
period of prescription begins to run.
APPROVED% Yours very truly,
J. C. Davis, Jr. PRICE MRIRL
County Affairs Mvlslon Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews B%5-ezcAv~
First Assistant Assistant,
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