Untitled Texas Attorney General Opinion

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THEATIMD NEY GENERAI.
OF ?lrExAs
Mr. Alwin E. Pape Opinion No. C-315
County Attorney
Guadalupe County Re: Whether Guadalupe County can
Seguin, Texas accept the roads and public
ways of Treasure Island with-
Dear Mr. Pape: out further dedication.
You have requested our opinion on the following question:
‘Can Guadalupe County accept the roads and
public ways of Treasure Island wlthout further
dedication from the present land owners on the
island?”
The facts related In your letter on which this opinion
Is based are:
(1) Treasure Island Is a well developed and inhabited
subdivision in Guadalupe County, Texas, with hard surface
streets which are used by anyone desiring to visit or drive
about the island and are de facto public streets by their use.
(2) The developer, Richmond Development Company, Inc.
has duly filed plats of said subdivisions for record In the
~;~o;g~lerkts Office containing the following pertinent
:
“The owner of the land shown on this plat
and whose name is subscribed hereto, and in person
or through a duly authorized agent, acknowledged
that this plat was made from an actual survey and
dedicates to the use of the public forever all
streets, alleys, parks, watercourses, drains, ease-
ments and public places thereon shown for the pur-
poses and considerations therein expressed. . . .‘I
@ceptlon not pertinent to this opinion omittedz
(3) We quote from your letter as follows:
“The problem that seems to stand in the way
is that the Treasure Island Homes Association, Inc.,
charges and collects a tax for various purposes,
and retains the vendor’s lien on the sold land for
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Mr. Alwln E. Pape, page 2 (C-315)
its collection, payable on January 1st of each
year for a term of years, January lst, 1985, and
which term may be extended, and the following is
copied verbatim from one of the deeds, one of the
purposes for which the tax is collected being,
among other things, for street improvement and
maintenance:
'From Deed:
", .the property herein conveyed is hereby
subjected to an annual maintenance tax and
charge of a rate not to exceed 10 mills per
square foot for the purpose of creating a fund
to be known as "Maintenance Fund" to be paid
by grantee herein, their heirs and assigns,
In conjuction with a like charge to be paid
by the owners of other lots on said Treasure
Island to the Treasure Island Homes AssIn.,
Inc. To secure the payment of such maintenance
charge, a vendor's lien is hereby retained In
favor of Treasure Island Homes Ass'n., Inc.
against the above described property, premises,
.and improvements, and It shall be the same as
If a vendor's lien was retained in favor of the
grantor herein, and assigned by proper assign-
ment to Treasure Island Home Ass'n, Inc. without
recourse on grantor In any manner for the pay-
ment of said indebtedness. Such annual charge
may be adjusted from year to year by Treasure
Island Homes, Inc., as the needs of the property
may in i.tsjudgment require, but in no event
shall such charge be raised above 10 mills per
square foot of area. Grantor herein agrees to
pay its proper proportion of said fund for the
unsold land fully developed as saleable lots
owned by It. Treasure Island Homes AssIn, Inc.,
shall apply the total fund arising from said
charge, so far as it may be sufficient, toward
oavment of maintenance exoensea incurred for
any or all of the following purposes: Lighting,
improving and maintaining streets, parks, park-
ways, esplanades, subsidizing bus service, collect-
ing and disposing garbage, ashes, rubbish and the
like, and employing policemen and watchmen, caring
for vacant lots, the owning and operating of water
system, the owning and operating of a landing
strip for aeroplanes serving the island, ana aolng
any other thing necessary~or desirable in the
opinion of the Treasure Island Homes Ass'n, Inc.
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Mr. Alwin E. Pape, page 3 (C-315)
to keep the property neat and In good order, or
which it considers of general benefit to the owners
or occupants of the addition, it being understood
that the judgment of Treasure Island Homes Ass'n,
Inc., in the expenditure of said funds shall be
final so long as such judgment Is exercised in
good faith. . .ETC. e . .
IfI . .The above shall be effective until January
1,'1985, and automatically extended for ten years
provided that the owners of the majority of the
square feet area in Treasure Island may revoke
such maintenance charge on either January 1, 1985
or at the end of successive ten year periods there-
after, by executing and acknowledging an appropriate
agreement or agreements in writing for such purpose
and filing the same for record in the office of
the County Clerk of Guadalupe County, Texas, at
any time prior to January lst, 1980, or at any
time prior to five years preceding the expiration
of any successive ten year period thereafter.
Said maintenance charge shall be payable on the
first day of January of each year in advance. . o 0p11
A public highway may be established by the owner of the
fee by setting it apart for public use, this method being
called dedication. Heilbron v. St. Louis Southwestern Rall-
road Co, of Texas, 113 S.W. b10 979 (Tex.Civ.App. 1906).
Public wavs that have been established by dedication are as
much public highways and are as much subject to public use
as if the land over which they run had been condemned and
paid for. Roaring Springs Townsite Co. v. Paducah Tel. Co.,
164 S.W. 50 (Tex.Clv.App. 1914, affm. 212 S 0W . 147)0 The
general rule‘that the dedicator may impose such restrictions
as he sees fit on making a dedication of his property is sub-
ject to the limitation that the restriction may not be repug-
nant to the dedication or aaainst Dublic DO~ICTT and if such
a-restriction is attempted it shall be void. Roaring Springs
Townsite Co. v. Paducah Tel. Co., 109 Tex. 452,
(1919).
As to acceptance of this dedication our courts recognize
the doctrine that a dedication of land to public use need not
be shown by deed, nor by public use for any particular length
of time, it being sufficient to show unequivocal acts or dec-
larations of the proprietor, dedicating same to public use,
and where others act on the faith of such manifested intention,
the proprietor will be estopped to deny the dedication or to
make any future use of the property inconsistent with any pur-
pose for which the land was dedicated. Tribble v. Dallas Ry.
Mr. Alwln E. Pape, Page 4 (C-315)
and Terminal Co., 13 S.W.2d 933 (Tex.Civ.App. 1929, error
ref.).
It is elementary that the dedicator cannot grant any
interest greater than he owned but based upon the assumption
that Richmond Development Company, Inc., owned the fee title
at the time the plat and above cited restrictions were re-
corded, or at any time subsequently, and that the property
owners either bought their lots from Richmond Development
Company, Inc., or a suacessor in interest which appears to
be Treasure Island Homes Association, Inc., the dedication
of the roads as public and the acceptance of the public by
purchase of the lots by reference to the plat and use of the
roads is adequate to impress the roads with a public easement.
The maintenance charge which is a provision of the deed
to private property adjoining these roads can have no effect
upon the public easement in the roads. Trlbble v. Dallas Ry.
and Terminal Co., supra and Roaring Springs Townsite Co. v.
Paducah Tel. Co., supra.
Article 6703 Vernon’s Civil Statutes provides that:
“The commissioners court shall order the
laying out and opening of public roads
when,necessary,. . .‘I
Article 2351 Vernon’s Civil Statutes provides as follows:
“Each commissioners court shall:
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"6. Exercise general control over all
roads, highway*, ferries and bridges in
their counties. . . .‘I
The Cbmmissioners Court may make and enforce all reason-
able and necessary rules for the working and repairing of
public roads. Art. 6741, V.C.S. The determination of the
necessity for the construction and location of public hlgh-
ways by a county is left to the sound judgment and discre-
tion of the Commissioners Court. Tarrant County v. Shannon,
129 Tex. 264, 104 S.W.2d 4 (1937).
Based upon the facts and assumptions above outlined, it
is our opinion that Guadalupe County through its Commissioners
Court can accept the roads and public ways of Treasure Island
without further dedication.
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Mr. Alwin E. Pape, Page 5 (c-315)
SUMMARY
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Based upon the facts and assumptions
set out above, Guadalupe County can accept
the roads and public ways of Treasure Is-
land without further dedication.
Very truly yours,
WAGGONER CARR
Attorney General of Texas
WRR:dj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Milton Richardson
J. Arthur Sandlin
Grady Chandler
Gordon Houser
APPROVED FOR THE ATTORNEY GENERAL
By: Roger Tyler
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