The proposition on which the State claimed that it was a public road was that the public had, on account of long usage of the same, acquired a prescriptive right to this certain property as a public road; and it is urgently insisted that the burden was on the State to show that none of the owners of said land labored under any disability during the period of prescription and cites us to City of Austin v. Hall (Texas Supreme), 57 Southwestern *Page 440 Reporter, 563. That was a case where plaintiff, Hall, sought to recover damages occasioned by defendant city of Austin constructing the dam on the Colorado River which overflowed the road which plaintiff claimed was a public road, and in effect destroyed said road. That case was certified by the Court of Civil Appeals (48 Southwestern Reporter, 53), to the Supreme Court, the following statement being made as to the situation, to wit: "It was not shown that the land over which the road runs had ever been condemned in the manner prescribed by statute, or donated by the owners thereof for a public road; and the plaintiffs sought to establish the fact that it was a public road by prescription, resulting from long-continued use by the public. The road extended across various tracts of land. As to some of these tracts the evidence does not show who were the owners during the prescriptive period, and it does not show whether any of the owners were sui juris during the time referred to. In fact, there was no direct proof that the title to the tracts of land referred to had ever passed out of the State." Upon this statement the following question was certified to the Supreme Court: "In order for the plaintiffs to establish a prescriptive right to the road, was it necessary to show that during the prescriptive period the servient estates — the various tracts of land against which the prescriptive right is claimed — were owned by persons free from legal disability, and against whom limitations or prescriptive right could be acquired by adverse use?" To this question the Supreme Court replied in the affirmative. It was further remarked in this connection: "A right claimed by prescription rests upon the presumption that the owner of the land has granted the easement, and the grant has been lost. To sustain this claim, it must appear that the use upon which the right is predicated has continued the requisite time, during which the owner was not under disability to resist the claim," — citing various authorities. It occurs to me that the question here is of a similar character; that is, before the State of Texas can recover a fine from the owner of the land for obstructing the road, all the conditions which would give a prescriptive right must be shown; and it must be shown that during the prescriptive period the owner or owners were in condition to make the grant, and were not under disability to resist the claim. I do not believe, therefore, the State discharged the burden imposed upon it, as no attempt was made to show that the parties who had formerly owned the land were not under disability. Under this view of the case, I think the judgment should have been reversed.