jimmie-d-bennett-and-june-bennett-v-wise-county-commissioner-mikel ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00116-CV
JIMMIE D. BENNETT AND APPELLANTS
JUNE BENNETT
V.
WISE COUNTY, COMMISSIONER APPELLEES
MIKEL RICHARDSON IN HIS
OFFICIAL AND INDIVIDUAL
CAPACITIES, COMMISIONER
DANNY WHITE IN HIS OFFICIAL
CAPACITY, AND ROBERT RANKIN
----------
FROM THE 271ST DISTRICT COURT OF WISE COUNTY
----------
MEMORANDUM OPINION1
----------
Appellants Jimmie D. Bennett and June Bennett appeal from the trial
court’s judgment that they take nothing on their claims against Appellees Wise
County (the County), commissioner Mikel Richardson (in his official and
1
See Tex. R. App. P. 47.4.
individual capacities), commissioner Danny White (in his official capacity), and
former commissioner Robert Rankin. The Bennetts bring four issues on appeal,
all based on their assertion that the evidence showed that County Road 4393 in
Wise County included a bridge over the West Fork of the Trinity River. Because
we hold that the Bennetts did not establish as a matter of law that the bridge was
a part of the county road, we affirm.
Background
This appeal arises out of the collapse of a bridge and a jury’s
determination that the bridge was not part of County Road 4393 in Wise County.
The bridge ran in a north/south direction across the West Fork of the Trinity
River. Before the bridge collapsed, it could be reached on the north side of the
river by way of County Road 4393. The bridge connected on the south side of
the river to property owned by J.L. McGilvray.
The Bennetts own property that is just south of the West Fork and just
west of McGilvray’s property. The Bennetts’ property is not contiguous to any
public road. They have an easement over McGilvray’s property to access the
bridge.
In September 2005, the bridge caved in on its south side. In January
2006, the Bennetts and some of their neighbors applied to the Commissioner’s
Court of Wise County to open a new public road under section 251.053 of the
transportation code. No record of the disposition of this application appears in
the record, but the Bennetts alleged below that the application was denied on the
2
ground that they had an easement over the McGilvray property to access another
road.
The Bennetts sued the County and commissioners Richardson and
Rankin, individually and in their official capacities. After White replaced Rankin
as commissioner, the Bennetts supplemented their petition to sue White in his
official capacity. The Bennetts claimed that County Road 4393 included the
bridge until September 2005, when the County ―through its commissioners . . .
closed and removed the Trinity River bridge and all of County Road 4393 south
of the bridge.‖ The Bennetts alleged that they do not have and have not had an
easement over the McGilvray property to any public road but County Road 4393.
The Bennetts sought a declaration that County Road 4393 included the
bridge and that the County had closed the road and thereby interfered with their
rights of ingress and egress. They also sought a temporary injunction enjoining
the County and the commissioners from depriving them of access to their
property from a public road during the pendency of the suit and a permanent
injunction enjoining the County and the commissioners from interfering with their
use ―of the public ways described.‖ They also asserted a claim for inverse
condemnation based on the road closure and sought damages for the reduction
in value of their property, lost rents, and lost livestock. The Bennetts filed a
supplemental petition seeking mandamus relief requiring Appellees to maintain
County Road 4393 ―in traversable condition for its full .9 miles length.‖
3
The case was tried to a jury. At the end of the Bennetts’ case, Rankin
moved for directed verdict on the claims against him, and Richardson moved for
directed verdict on the claims against him in his individual capacity; the trial court
orally granted both motions. With respect to the Bennetts’ remaining claims, the
jury found that when the bridge collapsed, County Road 4393 did not extend
across the river. The Bennetts filed a motion for judgment notwithstanding the
verdict (JNOV). The trial court entered judgment on the verdict and ordered that
the Bennetts take nothing. The Bennetts then filed a motion for new trial, which
was denied by operation of law. This appeal followed.
Analysis
Motion for JNOV
All of the Bennetts’ issues are based on their assertion that County Road
4393 included the bridge. In their second issue, the Bennetts argue that the trial
court erred by denying their motion for JNOV when the evidence established as a
matter of law that County Road 4393 crossed the river. They contend that there
was no basis for the jury to conclude that the bridge was not part of the county
road when every source shows that County Road 4393 was a county road for its
full length, that the official maps of the county show the road crossing the river,
and that the county periodically maintained the road, including the bridge.
A trial court may disregard a jury verdict and render JNOV if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
4
would have been proper.2 A directed verdict is proper only under limited
circumstances: (1) when the evidence conclusively establishes the right of the
movant to judgment or negates the right of the opponent; or (2) when the
evidence is insufficient to raise a material fact issue.3 In other words, we must
apply the legal sufficiency standard of review.4
The Bennetts had the burden of proof on this question, and therefore, in
challenging the legal sufficiency of the jury’s finding, they must show on appeal
that the evidence established as a matter of law all vital facts in support of their
issue.5 We view the evidence in the light most favorable to the verdict,6 and we
must credit evidence favoring the jury verdict if reasonable jurors could and
disregard contrary evidence unless reasonable jurors could not. 7
2
See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.
2003); Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.
1991).
3
See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003);
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.
2000); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 919 (Tex.
App.—Fort Worth 2009, pet. denied).
4
See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999) (setting out the standard for legal
sufficiency).
5
See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).
6
Miller, 102 S.W.3d at 709.
7
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
see Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009).
5
The jury was asked whether, at the time the bridge fell into the river,
County Road 4393 extended across the river. When the bridge fell, the County
had not adopted the map that the Bennetts argue made the bridge part of the
county road. The map was therefore irrelevant to the jury’s determination of the
question. We therefore look at the other evidence at trial to determine whether
the evidence, viewed in the light most favorable to the verdict, established the
Bennetts’ right to judgment as a matter of law.8
Testimony Relating to the Bridge
The jury heard conflicting testimony about the bridge. Phyllis Morris, the
911-addressing coordinator for the County, testified that forty years earlier, when
she was in high school, she and her classmates would sometimes socialize on
the bridge, which they accessed by climbing over a gate on the north end of the
bridge. Calvin Buchanan, who had been living in the County for fifty-five years at
the time of trial, testified that starting in the mid-1970s, he had begun leasing the
property now owned by the Bennetts and that he had continued leasing the
property until the Bennetts bought the land. He testified that he probably used
the bridge more than fifty times a year to get back and forth to the hay he grew
on the land, and on ―good years‖ probably a hundred times. He testified that he
and the property owner did repair work on the bridge annually. He knew of only
one occasion when the County did any repair work on the bridge, and that had
8
See Islas, 228 S.W.3d at 651; see also Tanner, 289 S.W.3d at 830.
6
occurred when a prior commissioner had had a few timbers replaced. Buchanan
stated that at one time it was ―customary‖ for the County to fix a private road or
even ―anybody’s driveway‖ if requested.
Buchanan further testified that when he first started leasing the property,
there was a gate at the far north end of the road. He also testified that he
thought he and the property owner took it down at some point; ―it disappeared.‖
There was another gate on the bridge; at some point the gate was in the middle
of the bridge, but later the gate was on the south end of the bridge. He testified
that the prior owner had offered to sell him the property but he had turned down
the offer because he did not want to be responsible for maintaining the bridge,
which he had assumed was not a part of the county road ―because they hadn’t
maintained it in years, to [his] knowledge.‖
Henry Porter testified that his family has owned property in the County for
over a hundred years. Porter does not live in the County, but he acquired
property near what is now the Bennetts’ property in 1986 and has visited the area
throughout his life.9 Porter testified that he remembered a gate being in the
middle of the bridge in 1948 (when he was ten years old) and that at some point,
the gate was moved to the south end of the bridge. Porter also testified that
once a county commissioner rebuilt the bank on the north end of the bridge. He
also testified that at some point, another road provided access to property on the
9
Porter is also suing the County for access to his property, seeking to
compel the County to build a road south of his property.
7
south side of the river but that in 1937, a number of landowners (including his
family) asked the County to ―discontinue‖ it.
Rankin testified that in 2005, before the bridge collapsed, Bennett notified
him about a jam under the bridge, and as a result, he looked into whether the
bridge was a private bridge or part of County Road 4393 in order to determine
whether he could authorize spending county money on it.10 Rankin looked at
records from the Texas Department of Transportation and determined that the
bridge was not listed in that agency’s system as a county bridge. He talked to
the foreman and two other employees of his road crew, who told him that it was a
private bridge. The same employees told him that a former commissioner—the
same commissioner identified by Buchanan—had once had some planks
replaced on the bridge even though they told him that it was a private bridge.
Rankin also talked to several residents about the bridge, including one resident
who was over eighty years old. Based on his research, he determined that the
bridge was not a part of the county road.
Thus, two long-time residents testified that the bridge had been gated for
years. Buchanan testified that in the time that he had leased the property, it had
been the private property owner who did annual repair work on the bridge. A
10
See Louisiana-Pac. Corp. v. Newton Cnty., 149 S.W.3d 262, 264 (Tex.
App.—Eastland 2004, no pet.) (noting that ―[i]f a commissioners court spends
money on a road without knowing whether the road is a public road or a private
road, it risks violating the prohibition against county maintenance of private
roads‖).
8
county commissioner researched the issue and found no indication that the
public, county employees, or the Texas Department of Transportation believed
that the bridge belonged to the County. Although the Bennetts argue that the
evidence showed that the County maintained the bridge, the record does not
support that assertion. There was some evidence that the County had done
some repair work on the road leading to the bridge, including the part of the road
adjacent to the bridge, but the only evidence showing any repair work on the
structure of bridge itself was the testimony of Buchanan and Rankin that a
commissioner had caused some planks on the bridge to be replaced. The
testimony at trial, viewed in the light most favorable to the verdict, does not show
as a matter of law that the bridge was part of the county road when it fell into the
river.
Documentary Evidence Relating to the Bridge
In addition to testimony, both sides also introduced documentary evidence
of maps and property records of the County. A number of the property records
admitted reference a bridge, but neither side established as a matter of law that
the references in the records to a bridge were referring to the bridge at issue
here. Nor do the records establish the ownership of the bridge as a matter of
law. Some of the documents are difficult if not impossible to read, and no one
explained how the documents show a chain of title.
In their brief, the Bennetts argue that Defendants’ Exhibit 8 ―shows a
conveyance of a bridge to the county judge and his successor[s] in office.‖
9
Defendants’ Exhibit 8 is a deed purporting to convey ―the Garvin Bridge, across
the West Fork of the Trinity river and more particularly described in a certain
deed from H. W. Tarlton et ux, to E. G. Gasperson . . . to . . . J. A. Simmons,
County Judge of Wise County, Texas and his successors in office.‖ The deed
states that the bridge is ―more particularly described in a certain deed from H. W.
Tarlton et ux, to E. G. Gasperson, dated December 1st, A. D. 1944, and recorded
in Volume 157, page 165 of the deed records of Wise Co.‖ Appellees introduced
into evidence a deed from Tarlton to Gasperson that was dated December 1,
1944 and that conveyed eight tracts of land. But although the descriptions of
some of these tracts mention the river, none describe a bridge. Thus, it was not
demonstrated as a matter of law that the bridge referenced in Defendants’ Exhibit
8 is the same bridge at issue in this case. Porter added to the confusion when
he gave his opinion that the bridge referenced in minutes from a December 1938
commissioners court meeting, in which the county voted to sell the bridge ―on
abandoned Garvin Road‖ to H.M. Tarlton for $150 was an entirely different bridge
altogether, one that no longer exists.
Furthermore, the deed in Defendants’ Exhibit 8 states that title ―shall vest
in the said grantee absolute, if, as, and when the grantee shall repair the said
bridge to render the same safe and practical for nominal traffic across.‖ The
Bennetts have pointed us to no evidence in the record, and we have found none,
10
that the County repaired the bridge as required for its interest to vest under the
deed.11
Defendants’ Exhibit 10, which the Bennetts argue shows that the bridge
and the county road are ―inseparably linked,‖ is not a deed but is instead an
assignment of a deed of trust to F.M. and Onace McGilvray. It does not convey
property but does include a description of property affected by the deed of trust.
Part of this description references a line ―to the center of an old bridge in Block
39; THENCE with center of county road North 55 degrees 52 minutes.‖ The
description does not more particularly describe what bridge is referenced or
which county road is meant. The description begins by stating that it is a ―tract of
property known as the Pope and Murray Ranch in the Van Zandt County School
Land Survey, Abstract 1182, in Wise County, Texas.‖ But we have not found and
the Bennetts have not pointed to anywhere in the record demonstrating that the
bridge and country road mentioned in the property description are the same
bridge and county road at issue in this case.
Plaintiffs’ Exhibit 14 is a map of blocks 38 and 39 of the Van Zandt County
School survey. The map lists a ―Decatur & Garvin Road‖ and indicates the road
11
See Clark v. Womack, 142 S.W.2d 954, 957 (Tex. Civ. App.—Amarillo
1940, writ dism’d, judgm’t cor.) (noting that ―a deed may contain one or more
conditions which must be performed before the title to the property therein
described vests in the grantee by such conveyance and the grantor may require
any lawful condition he may elect‖). Because the parties do not raise the issue,
we do not discuss whether this deed would implicate the rule against
perpetuities. See Kelly v. Womack, 153 Tex. 371, 375, 268 S.W.2d 903, 905
(1954) (defining the rule against perpetuities).
11
runs into a bridge across what appears to be the Trinity River. The map does not
show any road, county or otherwise, to which the bridge connects on the other
side of the river.
As the Bennetts point out, the easement given to them by McGilvray does
state that it begins ―at the bridge across the river on County Road 4393 running,
more or less, along the river bank, as it may change from time to time, to an
existing steel gate on the boundary line of Grantors’ property and [Grantees’
property].‖ In the easement, the Bennetts ―agree to keep their lock on gate at
County Road 4393 locked.‖ But the description does not unequivocally indicate
that the bridge is part of the county road, and even if it did, the description is
merely a description of the easement—it does not convey or dedicate the bridge
to the County.
Based on this evidence, we cannot say that the trial court erred by
concluding that the Bennetts had not shown as a matter of law that the bridge
was part of a county road when it fell into the river.12
The County’s Adoption of a Map
Because the evidence is sufficient to support the jury’s finding that the
bridge was not part of County Road 4393, we could only sustain the Bennetts’
issue if, notwithstanding the jury’s answer to that question, the County’s adoption
12
See Islas, 228 S.W.3d at 651; see also Tanner, 289 S.W.3d at 830.
12
of the map created in the County a duty to rebuild the bridge after it collapsed.13
The Bennetts do not expressly argue that the trial court should have entered a
judgment in their favor on the ground that the County took on such a duty. But
they implicitly make the argument because they argue that the County’s adoption
of the map extended the county road across the river and therefore caused the
bridge to become part of the county road. Assuming that is a true statement of
the law, it would not help the Bennetts unless it also created a duty in the County
to rebuild the bridge, considering that the County did not adopt the map until after
the bridge had already fallen into the river. We will therefore consider this
argument. The statute relied on by the Bennetts, however, does not create any
such duty in the County.
Before 1981, a county could use its continuous maintenance of a road
during the prescriptive period as a factor to show the county’s adverse
possession of the road. 14 In 1981, the legislature adopted a statutory scheme,
13
See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.
1994) (stating that a trial court may disregard a jury finding if the issue is
immaterial and that a question is immaterial if it was properly submitted but has
been rendered immaterial by other findings); Fire Ins. Exch. v. Sullivan, 192
S.W.3d 99, 105 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (noting that
the trial court’s judgment must conform to the evidence).
14
See, e.g., Turner v. Live Oak Cnty., 107 S.W.2d 1103, 1105 (Tex. Civ.
App.—San Antonio 1937, writ dism’d) (affirming trial court’s judgment that the
county had a prescriptive easement on property that it had graded and worked
on for more than ten years and that the public had used for that period); Tex. &
P. Ry. Co. v. Kaufman Cnty., 17 Tex. Civ. App. 251, 254–55, 42 S.W. 586, 587
(Tex. Civ. App.—Austin 1897, no writ) (―It was long ago decided in this state that
the character of a public road may be established as such by long-continued use
13
now codified in chapter 281 of the transportation code, setting out the manner in
which a county with a population of 50,000 or less could acquire a public interest
in a private road.15 The chapter provides that such counties can do so only by
purchase, condemnation, dedication, or a court’s final judgment of adverse
possession—and for purposes of this chapter, using public funds to maintain a
private road in which a public interest was not recorded does not constitute
adverse possession.16 In other words, no longer may a county with a population
under 50,000 establish the existence of a prescriptive easement over a road by
showing that the county had continuously used public funds to maintain it
throughout the limitations period.
[by the public] and by orders of the commissioners’ court assigning hands to
work it as a public road.‖); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.026
(West 2002) (providing ten year limitations period to bring suit to recover real
property ―held in peaceable and adverse possession by another who cultivates,
uses, or enjoys the property‖); Ramirez v. Calhoun Cnty., No. 13-09-00018-CV,
2009 WL 5135632, at *6–8 (Tex. App.—Corpus Christi Dec. 29, 2009, no pet.)
(mem. op.) (affirming the trial court’s finding of a county’s prescriptive easement
on property when the public had used the property and the county had
maintained it for over ten years); Eastex Wildlife Conservation Ass’n v. Jasper,
450 S.W.2d 904, 907 (Tex. Civ. App.—Beaumont 1970, writ ref’d n.r.e.) (―A road
not originally established under the statute may become public by long-continued
use and adoption as such by the county commissioners with the assent of the
owner or by prescription.‖) (quoting Worthington v. Wade, 82 Tex. 26, 28, 17
S.W. 520, 521 (1891)).
15
See Act of May 31, 1981, 67th Leg., R.S., ch. 613, §§ 1–7, 1981 Tex.
Gen. Laws 2412, 2412–13 (current version at Tex. Transp. Code Ann. §§
281.001–.007 (West 1999)).
16
Tex. Transp. Code Ann. §§ 281.002, .004.
14
The statute is not retroactive,17 and thus a county affected by chapter 281
may still assert any prescriptive easements it had established prior to 1981. But
if a county wants to establish its easement in a legal proceeding, then, as the
party asserting the easement, the county still has the burden to prove that it
maintained the road prior to that time in the manner required to show a
prescriptive easement.18
More than twenty years later, the legislature was apparently concerned
that no statute of limitations existed for a landowner to bring suit to challenge a
county’s prescriptive easement and that as a result, ―[i]n the future, as counties
are unable [to] produce personal testimony with firsthand knowledge, they will be
more likely [to] lose in court.‖19 The legislature provided a solution by adopting
chapter 258 of the transportation code.20 This chapter established a method by
which a county could adopt a map and thereby clarify a public interest in a road
that it acquired either by one of the methods in chapter 281 or some other law or
17
See Act of May 31, 1981, 67th Leg., R.S., ch. 613, § 7, 1981 Tex. Gen.
Laws 2412, 2413.
18
See Wright & Vaughn v. Fanning, 86 S.W. 786, 787 (Tex. Civ. App.—
Dallas 1905, no writ) (putting the burden on the party asserting the easement to
establish the elements of an easement).
19
See Senate Comm. on Infrastructure Development & Security, Tex. H.B.
1117, 78th Leg., R.S. (2003), available at
http://www.legis.state.tx.us/tlodocs/78R/analysis/html/HB01117E.htm.
20
See id.; see also Act of May 20, 2003, 78th Leg., R.S., ch. 236, § 1, 2003
Tex. Gen. Laws 1070, 1070–72 (creating chapter 258).
15
by having continuously maintained the road prior to 1981.21 The chapter limited
the period of time after a county adopts a road map under this chapter that a
landowner could bring suit to contest the county’s assertion of public interest in a
road listed on the map.22 Thus, by adopting such a map, a county could create a
time limitation on potential challenges to prescriptive easements claimed by the
county. As of September 1, 2011, this option is no longer available.23
Nothing in the statutory scheme supports the Bennetts’ interpretation of the
chapter—that the county can accidentally create a public interest in a road by
adopting a map and thereby be forced to build a bridge on the road. Chapter 258
begins with the statement that ―a county may clarify the existence of a public
interest in a road as provided by this chapter.‖24 Thus, by its plain language, the
chapter’s purpose is to benefit the county by providing a method for it to clarify
that a road is, in fact, a public road, even though the county has not adopted the
road by the methods proscribed by statute. But nothing in the chapter indicates
an intent by the legislature to allow a county to inadvertently adopt a road or to
allow a private individual to use the chapter to require a county to maintain a
road. The chapter, when read in its entirety, is clearly intended to provide a
21
Tex. Transp. Code Ann. § 258.002 (West Supp. 2011).
22
See id. § 258.004 (West Supp. 2011).
23
Id. § 258.007 (West Supp. 2011) (providing a limitation on the period of
time in which a county may take advantage of the chapter’s provisions).
24
Id. § 258.001 (West Supp. 2011).
16
manner for a county to establish that a road is a county road when that county
has not adopted the road in the manner otherwise provided by law but has
continuously maintained the road from before 1981 until the time it promulgates
the map including the road.25
The county must, for example, include a notice of its intention to consider
adoption of the county road map in the ad valorem tax statements for the year
before the adoption of a county road map under the chapter. 26 This notice ―must
include a list of all roads in which the county will claim the existence of a public
interest by adoption of the map.‖27 The chapter further requires the
commissioners court to hold a public meeting at which a person asserting a
private interest in the road may protest the county’s claim.28 The burden is on
the county to prove the county’s continuous maintenance of the road beginning
before September 1, 1981.29 And after a county has adopted a county road map
claiming a public interest in a road, the commissioners court must include
25
See id. §§ 258.001–.007 (West Supp. 2011).
26
Id. § 258.005(a).
27
Id.
28
Id. § 258.002(b).
29
Id. § 258.002(b), (h).
17
another notice of that fact with the ad valorem tax statements for the year after
the year in which the county adopts the map.30
Furthermore, if a person had a private right, title, or interest in the road
prior to the county’s successful assertion of a public interest in the road by way of
the adoption of the map, then, if the county ceases to maintain the road, the
private right, title, or interest reverts completely to the person who held title at the
time the county successfully asserted the public interest.31 Thus, not only does
this chapter clearly not support the Bennetts’ claim that they can force a county
to build a bridge by the county’s inadvertent inclusion of the bridge on a county
map adopted under chapter 258, but when the county stopped maintaining the
bridge (if it ever did maintain it), then the bridge reverted back to private
ownership.
The Bennetts argue that the chapter provides that the adoption of a map
under the chapter is ―conclusive evidence‖ that the road is a public road, and
therefore the County must construct a new bridge. But the provision relied on by
the Bennetts does not, as they suggest, provide a way for a private individual to
require the county to adopt a road it did not intend to adopt. The statute states
that a map adopted under the chapter is conclusive evidence (except as against
a private individual claiming an interest in the road) of the public’s right of access
30
Id. § 258.005(b).
31
Id. § 258.006.
18
over the road and of the county’s authority to spend funds to maintain the road; it
does not state that it is conclusive evidence of the county’s duty to maintain the
road.32 This section does not, therefore, require the County to build a bridge.
And in any case, the evidence at trial did not establish as a matter of law
that the County continuously maintained the bridge from before 1981 until the
time it promulgated the map including the bridge as a part of the county road, nor
that it had established a public interest in the road by way of any other law. 33
Thus, even if this chapter can be used to force a county to build a bridge when it
includes the bridge as a part of its county map, the Bennetts failed to establish
that the county met the requirements under the chapter for the County to clarify
an interest in the bridge by including it on the map.34 The Bennetts make no
argument that the evidence established as a matter of law that the County
acquired the bridge by purchase, condemnation, dedication, or a final judgment
of adverse possession or under some other law.
Because (1) the evidence was sufficient to support the jury’s verdict that
County Road 4393 did not cross the bridge at the time of the bridge’s collapse
and (2) the statutory scheme relied upon by the Bennetts does not require the
County to extend the road by building a bridge, the trial court did not err by
32
See id. § 258.003.
33
See id. § 258.002.
34
See id.
19
denying the Bennetts’ motion for JNOV. Accordingly, we overrule the Bennetts’
second issue.
Motion for New Trial
In their third issue, the Bennetts argue that the trial court erred by denying
their motion for new trial when the evidence established as a matter of law that
County Road 4393 crossed the river. They contend that ―there is no conflicting
evidence with the official maps of the County depicting County Road 4393 going
across the river‖ and that ―presumably to this day, County Road 4393 still
crosses the river—but the County is refusing to maintain it for its full length
(including the bridge).‖ But as we discussed above, a county cannot
inadvertently create a public interest in a private road by adopting a county map.
For the reasons we discussed in addressing the Bennetts’ second issue, we hold
that the trial court did not abuse its discretion by overruling their motion for new
trial because the evidence did not establish as a matter of law that County Road
4393 crossed the river.35 We overrule their third issue.
Mandamus or Injunctive Relief
In their first issue, the Bennetts argue that the trial court erred by refusing
to grant the mandamus or injunctive relief in their favor because the evidence
conclusively showed that the County had designated County Road 4393 to cross
35
See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)
(reviewing a trial court’s refusal to grant a motion for new trial for abuse of
discretion); see also Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004)
(setting out the standard of review for abuse of discretion).
20
the river. We have already held that after the bridge fell into the river, the County
did not have a duty to rebuild it. We therefore overrule this issue.
Motion for Directed Verdict
In their fourth issue, the Bennetts assert that the trial court erred by
granting Rankin’s and Richardson’s motions for directed verdict as to the claims
against them in their individual capacities. The Bennetts argue that former
commissioner Rankin put up a ―road closed‖ sign and a crossbar gate to close
access to the lower portion of County Road 4393 and that Richardson’s road
crew piled dirt in front of the bridge. These statements relate to the Bennetts’
claim that Rankin closed the bridge and the portion of the road south of the
bridge without designating a road as a replacement. The Bennetts also argue
that the County has ceased maintaining the bridge, and ―[i]f that decision was
made unofficially, it was done ultra vires.‖
Rankin testified that he had the ―road closed‖ sign put up for safety
reasons. He explained that when the bridge caved in, Richardson (the
commissioner for the area south of the bridge) decided to haul it out of the river
because it was causing erosion to McGilvray’s property and ―was definitely a
problem.‖ The crew set it on the road, and Rankin then had the sign put up
because the bridge was ―sitting in the middle of‖ the road, and he was concerned
about resident safety. He later put up a crossbar gate at the request of a County
Road 4393 resident who complained about people parking by the bridge in the
road and poaching on his property. Rankin told the resident that he could not
21
permanently block off the road but could put up a temporary gate. This gate was
placed south of the resident’s driveway, and there are no other driveways on the
road between the gate and the river. Thus, the road was not permanently
closed, and the only part of the road that could not be accessed was the portion
of the road south of the resident’s driveway and ending at the river. As for
closing the bridge, the Bennetts failed to establish as a matter of law that the
bridge was part of County Road 4393, and therefore the County did not have any
obligation to designate a replacement road for the bridge.36 As for the Bennetts
complaint that the County has ceased maintaining the bridge, as stated above,
the Bennetts failed to establish as a matter of law that the bridge was part of
County Road 4393 and that the County had any obligation to maintain the bridge.
We overrule the Bennetts’ fourth issue.
Conclusion
Having overruled all of the Bennetts’ issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DELIVERED: November 10, 2011
36
See Tex. Transp. Code Ann. § 251.051 (West 1999) (prohibiting a
commissioners court from discontinuing a public road until a new road
designated by the court as a replacement is ready to replace it).
22