Untitled Texas Attorney General Opinion

R-333 EATTORNEYGENERAL OFTEXAS AUSTIN 11. -lkxAs PRICE DANIEL .@.TTORNEY GENERAL May 1, 1947 Hon. Newell Cambron Opinion No. V-177 County Auditor Hopkins County Re: Legality of placing cattle Sulphur Springs, Texas guards and gate across a public road rather than fencing the adjoining land. Dear Sir: On the following facts, you ask two related questions: “A man in our county owns land on both sides of a public road. In order to keep from constructing a fence on both sides all along the road, he wants to build a cattle guard from the center of the road to the edge of the road on one side and a bridge from the center of the road to the edge of the road on the other side. Motor vehicles passing along the road could pass over the cattle guard without having to stop. .,Wcgons and other horse-drawn vehicles would have to stop, open a gate extending to the center of the road adjacent to the bridge and go through the same procedure at another point on this road where this man’s property ends. We would like for you to answer two questions far us: (1) Is it legal to ob- struct a road to the extent of causing drivers of animal-drawn vehicles to have to open and shut gates extending from one side of the road to the center of the road? (2) If this procedure is legal, would it be legal for the county to pay Ter the construction ofYbe proposed bridges, gates and cattle guards if the only purpose served by this procedure is to prevent the owner of the land adjoining the road from having to fence his land along the right of way on both sides of the road? Article 784 of V.P.C. provides as follows: “Whoever shall wilfully obstruct or injure or cause to be obstructed or injured in any manner whatsoever any public road or highway or any street or alley in any town or city, or any public bridge or causeway, within this State, shall be fined not exceed- ing two hundred dollars. ‘(Acts 1860, p. 97; Acts 1913; p. 258.)” Hen. Newell Cambren, Page 2 Op$nien No, V-177 Under the above statute,, it, bar beqn held in the Ease of Jelly v. State, 19 Cr. R. 76, that the eaucrti,ion of a gate aq,ross the public road constitutes an ille,grl obstru@ian ef, the road. We have feutxd ne dasas holding that a ,d,*ttile gu8M @un,sqi);uteo an illegal ob~f~u&iozi. HaweJer, in a prier opinion I$J o. 034695, tJIe Attor- nty Gcnaral ruled that the Cammissioners~~ Court of, T,pavis County had no authority to construct c,attle guards across public roads in Travis County and that cattle guards constituted an obstruCtion. In 21 Texas Jurisprudence, page 723; 724, under the head- ing “What is an Obstruction,” it is stated: “Evidence having been given of an artificial, physi- cal obstruction to travel, it ia,irn~i?iMl thin the&fend- ant’s structure encroao.hes upen only part of the rmadway and that the remaining part leaves ample space for travel. Aay narrowing of the dead to lass c$halrjits legal width is an ebstruttion, and any cbetruction that interferes with the road in the sense &making it less convenient for trav- el is an offense. HoweVct,, the oonven*gnce of the public is not the sole test, fer afiy psrmanaq$ inte,rfere.nce with the public right is an obstrubtireo, alt&ugh, regarded physically, the def&danB has net in faeih elMtrusted public travel, Thus a cons&&ion was affirmi$d where ~#re eb- struction $onsi.atod of #Qttiing the. geadway, pu%ting a cul- vert adaoss if., and le$&ig t+e r’ed i& a e@&t&n not as good a8 beforC. Fencing aIeng a ?teem &em a bridge lpprersh to the road Yeundary is’ likewi,se a legal ab- st~,~c%ia&. And of course an inclosure of part of the read by another dees net justify the, defendant’s inclosure of the, ramaWng part.” A,rticle 6794 of V&S, authorizes the Commissioners Court of any oour&ty in the State ,@entaining a population of not less than 5690 a&d not more than 5750 inhabitants according to the last pre- ceding Fedsral Cttisuci, ‘to @enstruet, cattle guards acs,oss any and all fir@, second or third class of roads in such county. This Act fur&e) provides “such Qrttlt guards shall, not be classad or aon- sider:rd as obstruction en said read, * An sxaminatiion of the last Fadepal Census of your county shews the pepulation of Hopkins Coun- ty is more than that described in S+l?tien 4 above mtntioned. Con- sequently, no authority is axtended ts yeux county undar this provi- +bprpeven;ff the provision should be a ~uenSti&tional act. It is cur epinien that a gate and cattle guard across a pub- lic road in your county would constitute an obstruction and would be in violation of Art, 784 of the Penal Code above quoted. It neces- sarily follows that IIopkins C&my is not authei,ized to pay the cost of $uch gate and cattle guard, , ’ Hon. NewaIl Cambron, Page 3 Opinien No. V-177 1. The erection of a ga$s and c~ttla guard across a public read, causing drivers of animal-drawn vehicles to have to eq,brr aPI* &t&t gabs extending from oae side of the road to the center of the road, would constitute an illegal obstruction of %hc road. Art, 704, V.P.C. 2. It is net legal for Hqekins County to pay fer the censtructlan of a bridge, gate and #aWe guard acres8 a public mad SO a8 eu prevmt 6bt owaor of 6ht lad rd- jeieing 6hc road from having to fence his land along the right of way on both aider of the road. Ymmre very truly, ATTQMEYBENEIMLOFTEXAS E. Cranshow A 6 alWant CEC: rt AE2M.A ATTORNEY OENERAL OF TEXAS