Honorable Fred P. Holub Opinion NO. c-398
County Attorney
Matagorda County Re: Whether accretion added to
Bay city, Texas the end of a dedicated
street becomes a part of
such street, and if so,
whether the accreted portion
of the street has been aban-
Dear Pk. Holub: doned under the stated facts.
Your letter recites dedication to the public of the
streets of the Original Townsite of Matagorda as a result
of the filing of the plat of said town for record some years
ago. The town being unincorporated,the streets thereof are
maintained by the county. Some lots fronted on the bay and
certain streets of the city ran up to the bay. Thereafter,
through accretion, the land advanced three or four miles so
that the streets are capable of being extended this distance
to the present line of the bay. However, the intracoastal
Canal separates the original dedicated portion of said
streets from the accreted portion.
The digging of said canal has resulted in a barrier to
the extension of such streets. The county has never main-
tained such extended streets, nor have they been used by the
public.
You request our opinion as to what rights the county has
in the extended streets, your letter pointing out that this
requires a determination,first, of whether the extensfions
onto the accreted area are a part of the dedicated streets,
and second, whether the streets in the accreted area have
been abandoned.
As to the effect of accretions, It Is well settled that
natural accretions belong to the riparian landowner. State
v. Balli 144 Tex. 195, 190 S.W.28 71 (1944 And see Luttes
ETYTCE& 159,93x. 500, 324 S.w.2d 167 (195B j. However, in
this case, the riparian land Is a dedicated street, over
which,~by virtue of the recording of the townsite plat, the
public has an easement. 21 T.J.2d 149, Easements, Sec. 24.
-1874-
Honorable Fred P. Holub, page 2 (C-398)
In Qibson 180 S.W. 630 (1915), the court
said that a alat setting aside tits streets is an irre-
vocable conveyance,and-that "when-herecorded his map
showing a street at a place where he had the right to ac-
quire land formed by accretions, . . . he conveyed to the
public those rights and such others as he had."
In Curry v. Port Iavaca Channel and Dock Company, 25
S.W.2d 987 reet running
along the bayshore. The court said:
~"Thus,same cuts off all lots or subdivi-
sions from the bay, and destroyed all riparian
rights."
In both cases, the quoted language is admittedly,dictum.
We have found no other Texas cases on the question.
In point is Horgan v. Town Council of Jamestown 80 Atl.
271 (R.I.. 1911). A street ran across the town to tie sea.
The claimant-buiita bulkhead and filled in an area between
the end of the street and the sea. He then built a stone
wall blocking access from the street to the sea. The court
said:
"The way having been dedicated to the
public, the public right in said way is not
lost by nonuser or by adverse possession,
however long continued (citing cases). This
right of access to navigable water dedicated
to the public, and not lost by mere nonuser,
will attach itself to any extension of the
upland at the end of said highway whether
such is an accretion arising from natural
causes depositing soil at the end of the
highway, or was caused by human activity,
either rightly or wrongfully exerted. . . .
That all accretions to a public highway
terminatingat a navigable water attach to
and form part of the highway is amply sup-
ported by authority."
In The Schools v. Risley, 77 U.S. 91 (1869),a street
ran along the banks of the MississippiRiver. Six or seven
hundred feet of alluvion was formed next:to the ~orlginal~.
bank and a new street was establishedon the accreted bank.
The court upheld the following instruction:
-.1875-
Honorable Fred P. Holub, page 3 (C-398)
"That if the jury believe . . . that~
a street . . . was permanentlyestablished,
for the public use . . . the owner or owners
of that block were not r'iparianproprietors
of the land between that block and the river."
In New Orleans v. United States, 10 Peters 662 (1836),
an ancient map of the New Orleans area showed a vacant space
along the banks of the river, designated on the map as a
"quay.' This was a public common. The court said:
"It appears that this quay has been
greatly enlarged, by the alluvial forma-
tions of the MississippiRiver. . . .
If the dedication of this ground to public
use be establishedby the principles of
common law, is it not of the highest impor-
tance that the accumulationsof the vacant
space, by alluvial formations, should par-
take of the same character,and be subject
to the same use as the spoil to which it
becomes united? . . . If the city can claim
the original dedication to the river, it has
all the rights and privileges of a riparian
proprietor. . . . This enlargement of the
quay cannot defytator impair the rights of
the city. . . To the same effect see
Barney v. Keok;k, 94 U.S. 324 (1876).
Prom the foregoing authorities,and assuming that the
three or four miles extension was naturally caused by ac-
cretion independentof the hand of man, we conclude that as
the land accreted at the end of the streets in question, the
streets continued to advance with the accretion to the new
line of the bay. We are assuming that the Intracoastal
Canal was cut through the accreted area. Of course, if the
accreted area was actually an island arising from the bed
of the sea, as distinguishedfrom an accretion to the main-
land, it would belong to the State. Gv 19
'rex.366, 278 S.W.2d 830, 835 (1955).
We emphasize in rendering this opinion that we have
relied strictly on the facts as stated in your request and
as restated in this opinion. We have made no independent
investigationregarding the area of land in question, its
creation, progression,method of progression or cause for
its growth.
-1876-
Honorable E'redP. Holub, Page 4 (C-398)
Incidentally,we point out that public roads belong
to the State, and not to the county. Robbins v. Limestone
Count;y,114 Tex. 345, 268 S.W. 915 (1925). The court, how-
ever, stated that the county is "authorizedand charged with
constructionand maintenance of the public roads within its
boundaries." See also State v. Hale, 136 Tex. 29, 146 S.W.2d
731, 736 (1941); 28 Tex.Jur.2d 165, Highways and Streets,
Sec. 135.
A title or easement for street purposes mav not be
lost by adverse possession. Article 5517, Ve:r&n's Civil
Statutes. See also G. H. & S. A.-Ry~,Co. v. City of Eagle
~asa, 249 S.W. 268, rev 'd o.g., 260 S.W. 841 (1923).
Authority for closing roads by the county Is found in
Articles 2351, 6703, 67o3a and 6705, Vernon's Civil Statutes.
Also see Article 6673a, Vernon's Civil Statutes, authorizing
the State Highway Department to make conveyancesof public
roads. And see Article 6674q-9, Vernon's Civil Statutes,
authorizing the abandonmentof public roads, but the method
of making the abandonment is not defined. We assume from
your letter that there has been no formal abandonmentof
the road by the county.
At the outset, we n&e that the forfeitureof easements
is not favored by the courts (28 C.J.S. 716, Easements, Sec.
52), and that the burden is on the person asserting aban-
donment to prove it (39 C.J.S. 1066, Highways, Sec. 130;
McQuillin on Municipal Corporations,3rd Ed., Sec. 30.208,
vol. 11, p. 171).
As reflecting the possibility of abandonment,your letter
points out what appears to have been long delay in opening
the streets, the nonuser thereof by the public and the diffi-
culties of access occasionedby the dredging of the Intra-
coastal Canal.
It appears to be wsll settled that mere nonuser by the
public, including long delay in opening the streets, will
not, standing alone, establish abandonment. City of La&awe
161 S.W. 8, (1913, error ref.); Adams v. Rowles,
1 g ex. 52, 228 S.w.2d 849, 852 (1950); Holt v. Texas Midland
WP?
R.R. Co., 160 S.W. 327, (1 13); Panhandle,etc. Ry . co. V.
Hurst 251 S.W. 538, (19233; 25 Am.Jur. 411; 39 C.J.S. lOb9;
&.S. 54.
-1877-
-
Honorable Fred P. Holub, page 5 (C-398)
As to whether the existence of the canal, ?rlththe
resulting difficulty of access to the extended streets,
results in an abandonment,requires an application of the
rule first announced in this State In the case of Griffith
v. Allison 128 vex. 86, 96 S.W.2d 74, 77 (1936). There,
the court held that abandonmentof an easement 'occurswhen
the use for which property is dedicated becomes impossible,
or so highly Improbableas to be practically impossible,or
where the object of the use for which the property is dedi-
cated wholly fails."
In Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d
922 (1942), the Supreme Court appears to announce a slightly
different rule when it refers to the "universallyrecognized
rule that, while abandonmentmay be established, like any
other facts, by circumstances,yet those circumstancesmust
disclose some definite act showing an intention to abandon
and terminate the right possessed by the easement owner.
The material question is the Intention to abandon and that
intentionmust be establishedbv clear and satlsfactorvevl-
dence. A mere nonuser of an easement will not exCinguish
lt.N Perry v. City of Gainesville,267 S.W.2d 270, 274,
(3954), follows thZs rule.
In a still later case, the Supreme Court In Adams v.
Rowles, 149 Tex. 52, 228 S.W.2d 849 (lg50), cited the Miller
case, supra, but only for the proposition that nonuser will
not extinguish an easement. For the general rule, it re-
turned to the rule of the Griffith case, supra, of finding
abandonment if the dedicated use is "impossibleor so highly
imorobableas to be oracticallv imnossible".or If the object
of the deuicated use-has wholly failed. This rule was again
recognized b the Supreme Court in MaMa 152
Tex. 427, 258 S.W.2d 797 (1953) and In Zac&y City of San
Antonio, 157 Tex. 551, 305 S.W.2d 558 (1957), zierein the
court In a park case stated:
"To constitutean abandonmentof dedi-
cated property use for which property was
dedicated must become impossibleof execu-
tion or the object of the use must wholly
fail."
It will be noted that in this language, the court makes
no distinctionbetween "impossible"and "practicallyImpossible."
-1878-
Honorable Fred P. Hollub, page 6 (C-398)
In seeking to apply the rule as thus announced,we note
the statement in your letter:
"In this case, the lntracoastalCanal
has hindered the use of the street added
by accretion and up to now has made it im-
practical to maintain, but to say that it
is impossibleor improbable in this day of
modern machine and growing populationwould
not be correct."
We agree. While the existence of the canal does pose an in-
convenience,the use of ferries and bridges, including draw
bridges, is common place in the establishmentof streets and
highways. Further, we find nothing in the existence of the
canal to indicate that the object of the street dedication
has wholly failed.
It follows from what we have said that under the
authorities cited, we are of the opinion that the facts as
stated by yourare not sufficient to establish an abandon-
ment. This holding, however, is limited to the facts as
stated by you. A very excellent and exhaustive review of
the authorities is found in 171 A.L.R. 87. At page 132 it
Is stated that whether there is an estoppel on the part of
municipal authorities to deny an abandonment "depends
largely upon the combined effect of the circumstancespre-
sented in the individualcase."
For example, in Magee Heirs v. Slack, supra, the court
held that where a "dream city" collapsed and was never de-
veloped, the object of the dedicated-useof the streets had
wholly failed, and hence there was abandonment.
In Plunkett v. Young, 375 S.W.2d 776 (error ref., n.r.e.,
19641, a portion of the road was under water and a jury find-
lng of abandonment was upheld as not being against ,the-great
weight of the evidence.
For other general discussionsof the problem, see
McQuil1i.non Municipal Corporations,3rd Ed., Sec. 30.182,
vol. 11, p. 100, et seq., and Elliott on Roads and Streets,
4th Ed., Sec. 1172, vol. 2, p. 1668, et seq.
Assuming that there are no additional facts evidencing
abandonment other than as outlined in your letter, we are of
the opinion that the failure to open such streets on the bay-
ward side of the canal, the nonuser of such streets by the
-1879-
. -
Honorable P'redP. Holub, page 7 (C-398)
public and the existence of such canal, do not render the
usage or sucn properties for street purposes "Impossibleof
execution",and therefore there has been no abandonment.
Under such circumstances,as pointed out in Robbins v.
Limestone County, supra, the county is authorized to con-
struct and maintain such extended streets.
SUMM4RY
The bay in front of the unincorporated
Town of Matagorda has receded as much as
three or four miles as a result of accretion.
Streets running to the bay were dedicated to the
public in the recorded plat or the Original
Townsite of Matagorda. As the accreted land
advanced the dedicated streets were therby
extended so as always to reach the bay. The
IhtracoastalCanal now separates the orlginal
streets from the accreted area. Such streets
bayward of said canal have never been opened
by the county, and the public has never used
same. The facts aforesaid do not establish
an abandonment of the extended streets. There-
fore, under the facts stated, the county is
authorized to constructand maintain same.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
stant Attorney General
JAS:ms
-1880-
Honorable Fred P. Holub, page 8 (c-398)
APPROVED:
OPINION COMMITTEE
W. V, Geppert, Chairman
Milton Richardson
Ben Harrison
Malcolm L. Quick
Jerry Brock
George Black
APPROVED FOR THEATTORNEYGENERAL
By: Stanton Stone
-1881-