On Motion for Rehearipg.
In. the light of the motion, the impression might arise that a considerable portion of a public road had been closed by the closing of the gate to his property by appellant, but the fact remains that the evidence showed that only a few feet of the road had ever been used for passage by the public; those few feet near or between the Cerrito de Mendez or Mendez Hills. The road in dispute has never been recognized by any legally constituted authority as a road of any class. No right was shown to the road by prescription. Following the custom of Texans in the early days, and even to this good hour, people traveled along the path of least resistance, with no idea or desire to acquire any permanent rights in the land, but merely to get to a place with the least output of energy. The same spirit is evinced even in cities, where the inhabitants will leave well-laid sidewalks, to shorten the distance a few feet, and make paths across the property of others. The right of property in vacant, unfenced land found slight lodgment in the average Texas mind. This is apparent from newspaper accounts at this time of invasions of the unfenced yards of citizens for the purpose of gathering flowers and breaking off the limbs of fruit or flower bearing trees. Such trespassers can gain no permanent rights against the lawful owner.
[6, 7] User of a way for many yeais by the public may create an easement in the public, especially in a well-settled country, where user would evidence an intention to appropriate, more than in a wild and sparsely settled country, where man and beast may wander untrammelled by fence or. obstruction over the lands of others. Prescription as to a road must ^est on the presumption that the road was established by proper authority, which presumption could have no basis when .the only authority to establish roads, and streets has been but recently created. The usé must be adverse arid uninterrupted, not only of a few feet of the highway, but of the highway as a whole. It would be a baseless claim to say that a road between two given points could be held by prescription/ when probably nine-tenths of the same has been obstructed, and the part unobstructed leads only in the direction of some citizen’s house. Each obstruction placed across the road before the prescriptive was ended, if it ever began, annihilated the prescription and destroyed the claim to the road. And this interruption of the use of the road need not have been an obstruction all along the way, as contended by appellant, but any obstruction that interrupts the line of travel and turns away from the used road the travel permanently and in an important way. Cunningham v. San Saba County, 11 Tex. Civ. App. 557, 32 S. W. 928, 33 S. W. 892. The old main road from Laredo to San Ignacio and Zapata years ago went between the Mendez Hills, but it was abandoned, and the public road is laid out in another place. It might be inferred from the motion that the road to the village of Dolores is closed altogether, but that is not true, but there is a direct and nearer road from the main road at a point near the Recuerdo farm than the. one in dispute. The only reason of the dispute 4s that it is a little nearer between the-Mendez Hills to two or three farms than to go around by the traveled road to Dolores. .
This court cannot follow the motion in its numerous repetitions and reiterations, many of which are not supported by tiie record, and none of which we believe to be meritorious.
This court has not held, and does not hold, that an unfenced road through unfenced territory cannot become a public highway by prescription regardless of any other facts. No court has ever held that, and not one-word has been written in the opinion of this court that is in conflict with the cases cited by appellees.
The motion is overruled.