Appellant was convicted of willfully obstructing a public road. There are several questions suggested for our consideration in the record, but, under the view we take of the testimony, we deem it unnecessary to consider but one of those questions, to-wit: the alleged insufficiency of the evidence to support the conviction. It would seem, from the record, that there has been a road running from Waco through Belton and Georgetown to Austin. This road has been known by the names of the "Waco and Austin Road," the "Belton and Georgetown Road," and the "Belton and Austin Road." This road was traveled at some time prior to the time that the town of Belton had an existence. So far as the record discloses, this road was never laid out by metes and bounds by order of the Commissioners' Court of Bell County. The record shows that what was known as the "Belton and Austin Road" in 1858 was declared to be a public road, and overseers appointed. At the time indicated the country was open, and people traveled along this road as their own inclination or caprice dictated. The road alleged to have been obstructed is on the Connell survey. Subsequent to 1858, as the country began to be settled and inclosed, by order of the Commissioners' Court of Bell County the road on the surveys north of the Connell survey was changed, and the lands inclosed, *Page 463 pushing the road to the eastward. As these roads were changed on the north, the point of entrance on the Connell survey would be changed by public travel to meet the changes made by order of the Commissioners' Court on the surveys north of said Connell survey. So far as the record discloses, no changes were made or any action had with reference to the road across the Connell survey, but it would seem, from the changes made by the Commissioners' Court on the surveys north of said road, that the point of entrance on the Connell survey was changed from 600 to 700 yards eastward. The record shows that no action was ever taken in regard to the Connell survey by the Commissioners' Court with reference to these changes, but shows the contrary. The parties living in the vicinity and along this road indicate that there was never but one road laid out across said survey, which occurred in 1846 or 1847, by military authority, which road was traveled for some years, and was closed up, north of the Connell survey, by the changes made by the Commissioners' Court as to the location of the road above its point of entrance in said Connell survey. As these changes would occur north, and in some instances, perhaps, south, of the Connell survey, the overseers appointed by the Commissioners' Court to work said road would work along the line extending from the point of entrance on the north of the Connell survey to some point of exit on the south, and this road across said survey, as traveled, would correspond with the changes made on the north of said survey by the Commissioners' Court. These roads — for there was seven of them across the Connell survey, at different times — would be changed from west to east on said survey, by inclosing portions of said survey by parties who owned or controlled it. The appellant, who owned and controlled a large portion of said survey, had owned his interest for eighteen years, during which time several of these changes had been made, and one of which he himself made in 1892; the change under investigation having been made in 1893. The owner himself testified that he believed, under all of these circumstances, that he had a right to change that road, that the Commissioners' Court had never laid out any road, had never paid him for it, and that he believed that a man who owned land in this country had a right to control and fence it, and that he had no intention of violating any law of his country in inclosing his own land; that he had applied to the Commissioners' Court for a change of the road to a point to which he did change it, and they refused it, because he, in the petition, called it the "Greorgetown and Belton Road," instead of the "Belton and Austin Road." Under this state of case, we are of opinion that the testimony fails to show a willful obstruction of a public road, if in fact, it shows that a public road really had an existence at the point of obstruction. Before a party can be convicted in this State for obstructing a public road, two things are absolutely necessary: First, there must be a public road obstructed; and, second, a willful obstruction thereof. In point, see Laroe v. State, 30 Tex.Crim. App., 374; Railroad Co. v. Parker, 41 N.J. Eq. 480,5 A. 641; *Page 464 Owens v. Crossett, 105 Ill. 354; 9 Amer. and Eng. Ency. of Law, p. 368. The judgment is reversed and the cause remanded.
Reversed and Remanded.
HURT, Presiding Judge, concurs.