Untitled Texas Attorney General Opinion ( 1957 )

April 3, 1957
Honorable Harold Green
County Attorney
Lynn County
Tahoka, Texas Opinion No. W-105
Re: Opinion as to authority of the
Commlssloners Court to open a
first class county road seventeen
years after petition and order ac-
quiring such road had been entered.
Dear Mr. Green:
Your request for our opinion stated the following
facts and asked the following question:
"In November, 1939, a petition was filed
with the court for the opening of a first class
road under the provisions of Article 6705, R.C.S.
Thereafter, on February 12, 1940, the Commlssion-
ers Court duly entered an order declaring that
said road be opened and awarded damages In ac-
cordance with the report of the jury of view.
'The road as ordered open ran in an east-
ward direction for one mile and then in a north-
south direction for three miles. The east-west
portion of one mile was duly opened as was two
miles of the north-south portion, and this por-
tion of the roadway. has been used and maintained
since the opening thereof. The last one mile of
the road as petitioned for was never opened and
the fence that ran across the same is still
there.
"Approximately ten years ago an electrical
distribution line was erected running north
and south in what would have been the roadway
had this last mile of road been opened. This
distribution line is still In place and in use.
.’
Honorable Harold Green, page 2 (WW-105)
“The Commissioners Court would now like
to open the laat mile of said road, but do
not want to condemn the utility company nor
the property owners along this one mile
stretch.
“QUESTION: Can the Court proceed under
the original petition and order entered in
1940 and open this one mile of roadway or
has the Court lost its right therein, either
by abandonment, estoppel, or otherwise, and
If so, must condemnation proceedings be in-
stituted?”
The easement for a public road belongs to the State
and Its people, and once an award has been ordered by the Com-
missioners Court to the owners of a tract or tracts of land
over which the road is to pass, any subsequent purchaser takes
subject to the easement thereby created. Wooldridge v. East-
land Counte, 70 Tex. 680, 8 S.W. 503.
When the Commissioners Court has entered an orde-,
opening a road and has made an award, the order so entered
is a final judgment and is not subject to a collateral attack.
Luck v. Welch, 243 S.W.2d 589 (Civ.App., n.r.e.).
This becomes, then, a right vested In the people of
the State to use the route, so laid out by the jury of view,
for road purposes, and we are of the opinion that a seventeen
year delay in putting the land to the use for which it was ac-
quired cannot deprive the people of their rights in the ease-
ment.
Rights acquired by the public in a road easement are
not lost by failure of the public to travel the full width of
the road. Nonken v. Bexar County 221 S.W.2d 370 (CiV.App.,
n.r.e.1; and It has also been hel;f that the public did not
lose its right in a part of a dedicated street because such
part was not opened up or used for 13 years. City of Dallas
V. Gibbs, 65 S.W. 81 (Civ.App. writ ref.).
Non-use of a road closed by a fence for twenty years
is an abandonment at law (Art. 6703a,v.c.S.); but it would seem
that this has no application to an easement over which no road
has ever existed. The public cannot abandon its inchoate right
t,o a road in the same way It could abandon a road by non-use.
It is our opinion that~ there has been no abandonment unless
Honorable Harold Green, page 3 (WW-105)
there are other circumstances also present, besides non-use,
which would prove intent to abandon this easement right. Perry
v. City of Gainesville, 267 S.W.2d 270 (Clv.App., n.r.e.).
SUMMARY
Rights of the public to a road
easement acquired by an order of the
Commissioners Court have not been lost
by seventeen years of non-use. Subse-
quent purchasers of tracts crossed by
such easement took title subject to the
rights of the public in such easement.
These rights may now be exercised by
opening up the road.
Very truly yours,
WILL WILSON
Attorney General of Texas
Byf&mF
Assistant
APPROVED:
OPINION COMMITTEE:
H. Grady Chandler, Chairman
J. C. Davis, Jr.
William E. Allen
John Ross Iennan
REVIEWED FOR THE ATTORNEY
GENERAL BY:
Geo. P. Blackburn