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