(dissenting on rehearing).
In the original opinion of this Court; edited by the writer, to which each of my associates agreed, the "judgment of the trial court establishing an easement over appellants’ land because of extreme necessity and its long-continued • and uninterrupted use for ingress and egress for all parties who may have wished to use it, was affirmed; reversed only with respect to the mandatory'order directing restoration of the roadway to such usable condition as existed before the levee was constructed by appellants. We reversed ánd remanded the mandatory order of the trial court because of its generalities, —vague and uncertain as to be unenforceable, ' and remanded the cause for more direct and positive action on the part of appellants in reference to repair of the easement. Appellee, in motion for rehearing, contends that instead of reversing the mandatory order for the reasons stated, it was the duty of this Court to reform the judgment to comport with the pleadings and evidence, by ordering the removal of the levee, conformable to the condition of . the easement before the levee was constructed. On further review, it is evident that the use of the roadway is hindered by the levee obstruction, and, instead of reversing and remanding the mandatory order, this Court should have reformed the order of the trial court and entered judgment commanding appellants to remove the levee obstruction, thus af*602fording appellee the use of the roadway as before.
Furthermore, the evidence (uncontro-verted) on which the trial court may well have- based the judgment, as she did, shows that the roadway in question was in use as a public way before the lands which it traverses were fenced and when the lands in that vicinity were open pastures. Mr. Shellito, Sr., a resident of that community for 42 years, familiar with the property involved, testified that the road had been traveled by the public for more than 40 years. Mr. Pool testified that he had known the road “definitely, since about 1901” “Q. Was there a fence on both sides of the lane then? A. No, sir. Q. It was open; is that right? A. Yes, sir.” Mr. Posey testified that he had lived in that community since December. 1895; owned property in the Tone Survey adjacent to Mr. Rosier’s land; traveled the road in question in 1896 — “1896 or 1897,” and that it has been used “continuously as an outlet for Mr. Othen’s place” since he has known it. “Q. Now, then, is there -any other outlet from Mr. Othen’s place to a highway outside of the road — to a public road? A. Well, I don’t know of any.” Mr. Goldman testified that he was 69 years of age, lived in. the community in question “since 1893”; is well acquainted with the road in question since 1893.
“Q. Has there been a passageway or road through there any length of time? A. Yes, sir, there was a ford on the creek east of there and all the Duncanville people coming to Fort Worth or Arlington, driving cattle, would come up that way. It was a direct road to Fort Worth.
“Q. Do you know when this place was put in there, where Mr. Othen now lives? A. When, it was broke out?
"Q. Yes, when was that? A. 1895.
“Q. Was that passageway used then by the. people who .lived in that place? A. Yes, it was used then.
“Q. Was this lane at that time fenced along here? A. No, it wasn’t fenced at that time; just one fence there.
“Q. When- was - that fence put up there? Can you tell the court? A. Well, it was in -1895 * * * fall of 1894.”
The opinion of our Justice' Cramer, concurred in by Justice Young, objectively becomes the opinion of this- Court, reversing the judgment of the trial court .and rendering judgment for appellants, based upon evidence which had been adversely determined by the trial court. The-trial court thus having considered the-evidence offered in trial of this case, and having determined that the plaintiff (ap-pellee here) has an easement by necessity over the property in question and that he is entitled to continue the use of the easement and roadway, her decision is controlling here. In the very recent case of Smith v. Jordan, Tex.Civ.App.1949, 220 S.W.2d 481, 484, decided a few days ago, opinion edited by Justice Cramer, concurred in by Justice Young, affirming the judgment of Judge Sarah Hughes, it is said, equally pertinent here, “Since the trial court’s findings are sustained by substantial evidence, they are binding on us. The judgment is therefore affirmed.”
I respectfully dissent, adhering to our former opinion, reformed as hereinabove stated. Accordingly, the judgment of the court below should be affirmed; appellants’ motion for rehearing should be overruled.