Untitled Texas Attorney General Opinion ( 1973 )

.’
September 28, 1973
The Honorable Gerald W. Schmidt Opinion No. H- 111
County Attorney
Gillerpie Co u nty Re: Whether the ltrtute,
Frederickrburg, Tcua 78624 of limitation0 applier
to rorde dedicated to
public uec but either
never useda sluch ,or
ured end later aban-
Dear Mr. Schmidt: bndoaed?
You hxve requerted our opinion am to whether certain rtatutee of
limitationmay have run againrt Gillsepic! County to bar itr claim of title
to county roadr dedicated in 1645 to public we. You etrte that mome of
the roadr have been ured by the public for tranrp?rtrtion purporer while
otherr have not. and thet prerently all of the roadr ia controversy have
fallen into diruie and are being fenced qy.privrte ownerr.
An important upact of your queetion ir that +e roadr have been
dedicated to the public. Apparently, the German hrmigr@tion Company
platted the rordr in conjunction with l plan for townlote and outlotr in
Frederickmburp and rubrcquently filed the plea in the record8 of Gillespie
County. In our opinion, the male of lotr l pecified by the plan by reference
to the recorded plet would be rufficient to conrtitute a dedication of the
roads. Adamr v. Rowlrr, 228 S. W. td 049 (Tax. 1950); Andeiron v. Tell
Timberm Core, 378 S.W.2d 16 (Tax, 1964).
The remaining quaetion ir whether any peraon could acquire by occu-
pancy or rdveree poemereion my right or tttlo to any part of the roadr 80 lr
to bar the claim of title by the county.
Prior to 1887 there wan no ltatutory inhibition againat a perron acquir-
ing title by limitation to land on which a roid or rtreet had been eetebliehrd.
p* 537
The Honorable Gerald W. Schmidt, page 2 (H-111)
Oatrom v. City of San Antonio, 14 S.W. 66 (Tax. 1890). And, in fact,
the courta did permit the statute oi limitation to run rgainat a city when
adverse poaaeaaion warn ahown for a sufficient number of yeara. Neblett
v. R.S. Sterling Investment Co., 233 S.W. 604 (Tix. Civ:Appt , Beau--
mont, 1921, writ ref’d. )
However, in 1887. the Legialature enacted a statute now found am
Article 5517, V. T. C. S. It provider:
“The right of the State, all counties, incorporated
cities and all school diatricta . . . ahrll not be barred
by any of the proviaiona of thia Title, nor shall any
person ever acquire. by occupancy or adverse poaaea-
aion, any right or title to any part or portion of any
road, atreet, alley, aidewalk, or grounds whichbelong
to any town, city, or county, or which have been donated
or dedicated for public use . . . or which have been kid
out or dedicated in my manner to pub1i.c uae. . . . ‘I
This provision has frequently defeated claims by individuals to rights
in land dedicated es public roads. Adama v. R o wlea l. upra; Coomba v.
City of Houaton. 35 S.W.2d 1066 (Tex. Civ. App.&.lvcrton, 1934, no writ);
Texas I P. Rv. Co. v. Reeae, 163 S.W.2d 249 (Tex. Civ.App., Texarkana.
1942, no writ); County of Calhoun v. Wilson, 425 S. W. td 846 (Tex. Civ. App.,
Corpur Christ{. 1968, writ ref’d., IL r. a. ).
In our opinion no righta hbve bean acquired by any individual,in roads
dedicated to public use in Gillespie County unleaa acquired prior to 1857. or
acquired mince 1955 under the proviaiona of Article 6703e. V. T. C. S. (Acta
1955. 54th Leg., p. 1625, ch. 525) which provider:
“Whenever the use of a county rord hea b ec o me lo
infrequent that the adjoining land owner or ownera
have, lnclored maid road with a fence and maid road
ham been continuously under fence for s periodof
twenty (20) years or more, the public ahell have no
further lraement or right to use maid road unleaa and
until said road ia re-eat&limbed . . . i provided
however, t&t this Act #hell not apply to lccema roada
reasonably neceaa~ry to reach edjoining lend. I1
p. 538
.
.. .
The Honorable Gerald W. Schmidt, pbge 3 (H-111)
It is therefore our opinion that, unlearn private rights were acquired
prior to 1881, Article 5517, V. T. C. S., excepts counties from the operation
of the lmtute of l&ttation with respect to dedicated roads or etreeta. We
are,further of the opinion that, because of the specific restrictions imposed
by Article 5517, K.T. C. S., upon.,tcquiait%n ofrtitl~by``dv&ie:poiiaaaioa,
the:10 bnd 25 year ltb tu teaof limitation (Articles 5510 and 5519, V. T. C. S. )
do not apply to rode or streets either belonging to Gillespie County or
dedicated tb it for the public use. Since 1955, Article 6703~. V. T. C. S.-,
ham made B narrow exception to the general rule of Article 5517 by permit-
ting 8 person to acquire rights in rorda’ii he ham fenced the land continuously
for twenty years and if the road is not now “reasonably neceaabry” to pro-
vide access to adjoining property. Whether much rights have been acquired
under that Article would depend upon the determination of factual queationr
which we are not permitted to make.
SUMMARY
Except where B roadway ham been enckaed by
fence by an adjoining owner continuously for twenty
years or more, end tha roadFey is not reasonably
neceaaery to reach adjoihing’ land, mince 1887 roadways
belonging to a county or dedicated to B countyfor pub:
lit use have not been subject to adverse poaaeaaion
.
under Articles 5510 and 5519, V. T.C. 5.
Very truly yours,
APPBOIj,ED:
Opinion Commitbe
. p. 539