dissenting.
I respectfully dissent.
This is an appeal from a declaratory judgment declaring that “Lindner Road,” situated on appellants’ property in Kendall County, was a public road. The judgment rendered by the trial court, without a jury, was predicated on the common law doctrine of “implied dedication.” The roadway in question was built by appellants’ predecessor in title with the help of neighbors and passes through appellants’ property a distance of 1.3 miles. The roadway intersects with other county roads; namely, Holiday Road on the east and Herman Sons Road on the west and eventually connects with Skyline Drive, a new dedicated public roadway built to serve the same area. The four gates across Lindner Road were kept closed but not locked until the summer of 1982 when the issue was raised upon appellant locking the gates. The roadway has been maintained by the county with permission by appellants. On October 10, 1949, the Commissioners’ Court of Kendall County declared Lindner Road to be a public county road; however, the trial court declared the “Order” to be void and of no force and effect since the action taken was without notice to appellants.
Appellants’ first eight points of error challenge the correctness of the findings' of fact and conclusions of law. Specifically we were asked to determine whether the record evidence supports the finding of an implied dedication of Lindner Road as a public road. The essential elements of a common law implied dedication are: (1) a person competent to dedicate; (2) a public purpose that will be served by the dedication; (3) an offer or tender of dedication; and (4) an acceptance of the offer or *618tender. Dinwiddie v. American Trading and Production Corp., 373 S.W.2d 867, 869 (Tex.Civ.App.—El Paso 1963, no writ). In City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718, 720 (1931), the Supreme Court addressed this question, saying:
“The vital principal, ..., upon which the doctrine of dedication rests, is the intention of the owner to dedicate. This intention may be implied from the owner’s acts, coupled with the intention with which he acts. But the intention to dedicate must be shown or inferable, by sufficient evidence, from the owner’s acts.” [Emphasis added.] [Citations omitted.]
Implied dedication is founded upon equitable estoppel based on the owner’s action or inaction. Dinwiddie v. American Trading and Production Corp., supra at 869. The establishment of facts constituting dedication cannot be left to conjecture and when the asserted dedication rests in estop-pel, the evidence should clearly and satisfactorily establish the necessary facts. See Lee v. Uvalde County, 616 S.W.2d 367, 372 (Tex.Civ.App—Tyler 1981, no writ); Henderson v. Frio County, 362 S.W.2d 406, 409 (Tex.Civ.App.—San Antonio 1962, writ ref’d n.r.e.). Maintenance of the road by the county, with the owner’s consent cannot be considered as clear and unequivocal acts on the owner’s part as to estop them from denying their intention to dedicate the road in question. Lee v. Uvalde County, supra at 372.
It is undisputed that the road in question is situated on appellants’ property. A public school named the Holiday School was built on the property and existed for many years with appellants’ consent. The school was later closed and the land and school reverted back to appellants. The evidence presented by appellee in support of the claim of implied dedication was restricted to the testimony of past county commissioners and neighboring landowners testifying to factual conclusions. The record reflects that any designation of Lindner Road as a public road was by virtue of the 1949 void order of the county commissioners and not by implied dedication. The record evidence does reflect that Skyline Road, a more recently built dedicated county road serves the general area. The witnesses stated that Skyline Road was hazardous during bad weather and only on those occasions was Lindner Road used. It was clearly established that travel on the road in question was limited to area landowners. We are not persuaded by the fact that the county maintained the road with appellants’ consent since such evidence is not sufficient to show that appellants’ consent amounted to an intent to dedicate the road to the public. See Lee v. Uvalde County, supra at 372. I am unable to find in this record proof of any acts or omissions on appellants’ part which would tend to show an intention to dedicate the road to public use. Appellants’ testimony that he gave a license or permission to the area landowner to use the road was unrebutted. As in O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 883 (1960), there is no evidence to show that the public generally or customarily used the road.
The common law doctrine of implied dedication has been abolished by TEX.REV. CIV.STAT.ANN. art. 6812h (Vernon Supp. 1984). The suit was filed after the effective date of article 6812h and retroactivity of the statute is not in issue in view of my ruling that there never was an implied dedication of the subject roadway. My conclusion is that the evidence is factually and legally insufficient to support the trial court’s findings and judgment. Therefore, I would reverse the judgment and the cause rendered.