Untitled Texas Attorney General Opinion

Awwt 25, 1950 Hon. Roy L. Hill opiniorr ao. V-1098. County Attorney Runnels County Re: Authority of the Coun- Ralllnger , Texas tg to prevent a land owner frcm closing a Dear SFr: road across his land. Your request for an opinion reads in part as follows : ‘In the year 1939, a number of citi- zens together with the owner of land, over which the road was established, agreed on the community using the road across his ranch; t&s was a permissive and agreeable ‘,use on the part of the owner. They sought help from the County in maintaining the road, and the Commissioner used his ma- chl.nery in gram, filling in, building cattle guards, etc. on the road, and such work is still being done, as I understand. The road is nov, and has been used by the general publio, and a school bus route has been maintained and Is nov being so used on this road. he son of the original ovn- er now wants to close the road . . ." You ask vhether the landovner csn close the road in question. It was held In Evaus v. Scott, 83 S.N. 874, 877 (Tex.Clv.App.1904): ” There were two theories upon vhlch ihi ippellees sought to restrain ap- pellant from Interference with the publlcts use of the road and the closing of the same; First, an Implied dedication to such use by appellant and those under whcunhe claimed; second, the acquisition of the right on the part of the public to use the road by pre- scription. These respeatlve olalms of right to the we of a highway rest upon and are 678 Hon. Roy L. Hill, page 2 (V-1098) governed by essentially different princi- ples of law. It iS eaid that an Implied dedication is one arising by operation of law from the acts of the owner, and is founded on the doctrine of equitable es- top 41. Elliott ,011Roads and Streets (26 It is essential in such case %k 1 !d”,&er Intended to set the land apart to the use and benefit of the pub- lic. This need not be evidenced by deed. ‘It Is enough that there has been scme clear, UmqtiVocal act or d8claFatlon of the proprietor evidencing an intention to set it apart for a public use, * and that there has been an acoeptauce on the part of the public. The length of time the .. road has been used by the public is of no consequence, unless it becomes Important, in connection with other circumstances, to show an intention on the part of the owner of the land to dedicate it to the public e Oswald v. Grenet, 22 Tex. 94; Preston v. City of Navasota, 34 Tex. 684; City of Corslcana v. Anderson (TexXlv. App.) 78 S.X. 261; Elliott on Roads dc ‘. Streets, Sg 160, 161. Unlike an implied dedication, which as ve have seen, oper- ates by way of es~oppel ln pals rather than by grant, a right by prescription rests upon the presumption that the own- er of the land has granted the easement, and that the grant has been lost. City of Austin v. Hall. 93 Tex. 591, 57 S.Y. 563; Saunders v. Simpson (Tenn.Sup.) 37 S.W. 195. To sustain this claim it is not neaessary to show intent on the part of the owner of the land to set apart the road to the use of the public, and the e:ement of acceptance Is not Involved; vhereas the length of t-8 the’road baa been used by the public is the foundation upon which the cla$m rests, and the use upon which the right is predicated must have contlnued uninterrupted under au ad- verse ‘claim of right’ for the full pre- scriptive period. . . . The public’s right of prescrlptlon to a highway is not dependent upon the recognition of that right by the mnlclpal authorities of the i Ron. Roy L. Bill, 679 page 3 (V-10@) county, but is acquired by adverse use for the time arid In the manuerprescrlb- ed by the rule8 of lav to which we have adverted. Acts done by the munlclpal au- thorities of the county In reoognltion of the road in question as a public hi huay vould doubtless be facts or circmm f ances evidenci the aCCOpbtnC8 of it under ap- p41144~s 2 heory of dedication, but the absence of such acts vould not prevent the acquisition of the right on the part of the public to use the road by preecriptlon. Pub- lic use i.wthe mamer stated and for the necessary period of prescription establishes the public right as firmly as if It had been created by an express grant. Furthermore, . a suit to establish a right to use a way claWed by prescription is in the nature of or analogous to a suit to recover land, based upon a title acquired by adverse pos- session under our statutes of llmitatlon, although the interest which may be acqtir- ed by prescription is only an easement, and not en estate In fee; and, where the pre- scriptive period, as in this state, is not fixed by statute, we conclude the longest period of limitation In actions for land, which 1s 10 years, till,by analogy, apply. Hence we hold that 10 years is the erlod of prescription rln this state, and -the court correctly so charged.' It was held in Philll~s v. T. dc P. Ry. 296 S.Y. 877, 880 (Tex. Comm.App.1927) that "the ublic may by ad- verse use for the prescriptive period, &l.ch 1s ordlnarl- ly 10 years in this state, acquire the line of hlghvay in a road though the counties have not recognized it as such.* In Black v. Terry Countg, 183 S V.26 685, 687 (Tex.Civ.App.l944), it was held: "The law is vell established in this State that whenever the ovners of land ob- tatamwledge of the fact that the county, the right tomintaina roadaud, acting "&hrough its road overseer, takes ac- tual end visible possession of the land over which It runs by vorklng it or Preparing it for public travel, thereby asserting a Clair . Hon. Roy L. Rlll, page 4 (V-1098) to it for the public in such manner that the ovners, if present, would have ascer- tained the fact that the road vas being established In behalf af the county and the public general1 the period of llm- ltation or prescrip enIon begins to run. The testimony shows that J. S. Black had possession of the entire Section 25 until his death and since MS death, J. Ii. Black has nW.ntained possession for himself and the other appellants oonstantly and con- tinuous1y. He admitted in his testimony that there probably was a road or passage- vay along the north line of Section 25 ever since the Forrlster schoolhouse was erected, and stated that he put some of the section In cultivation in 1928. But whether any of the appellants had actual know14 4 of the road or not, according to the “&estlmony it was laid out by the citizens of Terry County and worked or ‘scraped out’ in 1924 by the county au- thorities and graded by them in 1927. Even If the appellant, J. B. Black, who represented the other appellants, did not have actual knowledge of the establish- ment of the road, he vas charged with such tiowledge because he undoubtedly would have ho!in about it if he had been present at the time and would have lmown of the pub- lic travel over it at any time afterwards. These acts of establisblng the road and the general travel over it having occur- red more than nfneteen years before appel- lants filed this suit or made any effort to discontinue the road, the County and the public acquired title to it by pre- scrlptlon.” . .. In view of the foregoing, it is ow oplnlon that vhen a county maintains a road by working it or pre- paring it for public travel, thereby asserting a claim to it for the public in such a manner that the road is es- tablished for the benefit of the county and the public generally, the period of prescription begins to run. The period of prescription in this State is 10 years. Uheth- or the Poad In question has been acquired by Runnels County by rescription is a fact question which this of- fice canno ii answer. I .._ 681 Hon. Roy L. Hill, page 5’ (V-1098) SUMMARY A county may acqoire a public road by prescription, which Fn this State is 10 years. Uhena countymalntains a roadby vorlslng it or preparing it for public trav- ' 41, thereby establishing a claim to the road for the public in such a manor that the road is establlshed for the benefit of the couuty and the public generally, the period of prescription begins to run. APPROVED% Yours very truly, J. C. Davis, Jr. PRICE MRIRL County Affairs Mvlslon Attorney General Everett Hutchinson Executive Assistant Charles D. Mathews B%5-ezcAv~ First Assistant Assistant, JR:mf:mw