On Motion for Rehearing. The road in controversy was nothing more than a section of a neighborhood ranch road, maintained by neighboring ranchmen, primarily for their own and each other's convenience, although it is true, incidentally, that other members of the general public have occasionally traveled over it.
That section of the road here in controversy, which traversed appellant's ranch, was maintained and kept in repair exclusively by him, at his own expense, and he used it himself just as his neighbors did. The county authorities have never taken official cognizance of it as a public road; have assumed no dominion over it, exercised no rights over it; have never had it worked or repaired, or regarded it as a public road for any purpose.
Appellant's predecessor in title asserted affirmative dominion over it years ago by building and maintaining fences across it at four different points. It is true that he placed gates at those points, thereby evidencing his willingness to permit his neighbors to continue to share with him the use of the road, subject to the restraint imposed upon this travel by the obstructing gates. Those who availed themselves of this use recognized and respected the restraint by always closing the gates behind them, and by notifying him in advance when they desired to drive their herds through the gates and over the roadway across his ranch. No one was ever heard to object to this restraint, by word or act; all acquiesced in it. He continued his dominion over the road by maintaining and repairing it in his own way and time, and at his own expense, and those who had theretofore used it continued to do so in the face of those obvious conditions, without complaint. Such use was in no sense adverse to appellant, since it was with his open and obvious permission, and subject to the restraints imposed by him and the dominion asserted by him in retaining and exercising the exclusive control of the maintenance of the road.
If those using the road thought they had any rights in the road adverse to appellant, they could have asserted their claims by disregarding the gates and by asserting the right and assuming the burden of maintaining and keeping the road in repairs in their own way and at their own expense. They did not do this, but on the contrary acquiesced in appellant's dominion and control, without objection or other words or acts negativing the natural effect of such acquiescence, thereby recognizing appellant's claim of dominion just as effectively as if they had expressly done so in writing.
These beneficiaries of appellant's neighborliness, who have so long enjoyed this permissive use of his premises, ought not now be allowed to repudiate their acts of acquiescence in his dominion over these premises, and by the same token convert them into a prescriptive right of their own to such dominion. If the road has now become a public necessity, *Page 1108 appellees have the privilege of procuring its establishment by petitioning the county authorities to exercise the right of eminent domain by condemning the land and paying appellant for it, as contemplated in our organic law.
The finding of the jury, that the public use of the roadway was adverse to appellant, is without any evidence, either direct or circumstantial, to support it; but, on the other hand, it is in my opinion contrary to all the evidence in the case.
The judgment appealed from is in direct conflict with the holding of this court in Weber v. Chaney, 5 S.W.2d 213, and the numerous authorities therein cited. The Supreme Court approved our holding in that case by denial of a writ of error therein, and a majority of this Court see no reason to now repudiate that holding.
Appellant's motion will be granted, and the judgment reversed and the cause remanded.