This is a suit instituted by appellees for an injunction to restrain Ben F. Meckel, appellant, from closing a certain road across lands owned by him in Sutton county, Tex.
It was alleged that some of the appellees, plaintiff's below, reside near the road in question and are engaged in the ranching business near said road. That said road has been recognized and established and used as a public road by the appellees and other persons and by the general public, having occasion to travel through that section of Sutton county, continuously for a period of from thirty to forty years, during all which time same has been so used, traveled, and enjoyed under claim of absolute right so to do and without let or hindrance from appellant or any person whomsoever, until thirty days before the filing of the suit. That said road has been used by appellees and other persons and the public as a route of travel in going to Sonora, the county seat of Sutton county, and trading point for such persons, and for hauling ranch equipment and supplies to their several homes and ranches, and for moving live stock from place to place, and to reach the Sonora-San Angelo Highway to travel to points to which they may have occasion or necessity to go, and that said road has long since become and is now an established public road for use by appellees and the public; and that they have long since acquired and now have and are entitled to the prescriptive right to use said road. This use of the said road was open and plainly apparent to appellant.
After all the evidence was in, the court was requested to instruct a verdict for appellant, which was refused, and the jury answered, "Yes," to the following special issues:
"1. Do you find from the evidence in this case that the roadway described in plaintiff's petition was continuously used and traveled by the public generally, whenever it saw fit, for a period of ten years, or more, next preceeding the 11th day of April, A.D. 1930, substantially along and upon the same route and across the lands owned by the defendant?
"2. Do you find from the evidence that the roadway described in plaintiff's petition was continuously used and traveled by the plaintiffs, or by any of them, whenever they saw fit, for a period of ten years or more next preceding the 11th day of April A.D. 1930, substantially along and upon the same route and across the lands owned by the defendant?"
"4. Do you find from the evidence that such use and travel of said road on the part of the public was open and notorious and adverse to the defendant and without objection by him?
"5. Do you find from the evidence that the use and travel of said road on the part of the plaintiffs, if any, was open and notorious and adverse to the defendant and without objection by him?"
Thereupon the court rendered judgment in favor of appellees and this cause is properly before this court for decision.
The court did not err in overruling defendant's request for an instructed verdict, because the evidence established the use of the roadway by appellees, clearly and without contradiction, for the full period of time to establish a public road by user of said land.
During the use of said road no one had been required to get any permission to travel over it. And during all that time the road had never been obstructed so that the people could not pass over it at will. Many herds *Page 1107 of sheep and cattle were driven over that road to market, in plain view of appellant, and no one stopped or interfered with them in any way. It is true that there were four gates to be passed through, but they offered no obstruction, as they were readily and easily opened for passage along said road.
For many years the people traveled over this road at will and unrestrained, until they had acquired a public right to do so. If appellant did not actually give the right by words, he did so by acquiescence. The road was worked some by those using it — not to a great extent, but sufficiently so — from time to time.
J. Carlisle, one of the witnesses, testified: "At one time I lived in the settlement where this road is that's involved in this case; for six years I owned land up there; I sold out and left there in April; that would be, practically speaking, six years preceding the filing of this case. I was ranching up there. Before that time I was familiar with this road; I traveled it off and on for twenty-one years that I have known it. As to who traveled the road during the time; the neighborhood all traveled it — the Mittel ranch people and Joe Trainer and others, and I would see cars that I didn't know the people, and I would judge that they came from the Bailey ranch; I saw them when I lived there, and before I lived there I did windmill work, and I would see people on the road; I was doing windmill work over the country. During the time that I have known the road it had the same general character of travel and use; at times this Angelo road would be bad and people would swing around that way to go into Sonora with their supplies from San Angelo. During this time I have never known of anyone having to get permission to go through there. As to whether or not it has been called a public road by people; I taken it for granted people considered it a public road."
Others testified to the same effect.
If appellant did not see fit to stop the use of the road by his own act or by resort to the courts, then he would be acquiescing in the use of the road over his land and this would be construed to be by his "permission" and could never be adverse. It is like the old joke about the way they construed the pistol law in a certain western county. If the fellow was standing still he was not "carrying" the pistol, and if he was moving around he was "traveling."
We find no error committed that requires a reversal, and the judgment is affirmed.