Ron. Otto P. Moore, Sr. Opinion No, V-675
County Attorney
Colorado County Re: The authority of the
Columbus, Texas Commissioners' Court
to condemn an ease-
ment over private pro-
perty to enable fish-
ermen to have access
to a river.
Dear Sir:
Reference.ls made to your.recent request which
reads, In part, as follows:
"1. Does a number of private citi-
zens, who call themselves the general pub-:
UC, have a legal right to force a.land
owner whose land abuts' Colorado river in
Colorado County, Texas, to give or provide
an easement or roadway over and across his
private property in order that they or the
general public may have a passageway to
and from said river to fish therein?
“2, Does the Commlesloners Court of
Colorado County have the legal right to
condemn lands for an easement or public
road over private property in order for
;~~:;;;ing pub110 to.get to the river
Vhe facts are a8 followa:
"From where U.S. Highway No.90 cross-
es Colorado River at Columbus, Texas, there
is a distance of about four or,flve Piles
along said river there la no way to get to
the said river except over prtvate property
of the abutting land owners unless they fol-
low the meanders of the river along Its
banks. From time to time duringthe paat
the public have been given perdsslon to go
. .
Hon. Otto P. Moore, Sr.., page 2 (V-675 )
across the said private property to get to
the river, to fish, but from time to time the
land owners have suffered damages and had
trouble because of the wrongful acts of some
of the ones going across said private proper-
ty. Therefore the land owners gave notice
that the public would not be allowed to go
over their property. Since then a number
of citizen appeared before the Commisslon-
ers Court and asked that an easement or pub-
lic road be made across said property In or-
derthat the fishing public might have a
passage way to and from said river in or-
der that they might fish therein without
having to go around the river banks to get
there, claiming that gates and a passage
way had to be provided at a distance of
each mile along said Inclosures,
The question then arose as to whether
or not Colorado County, acting through its
Commissioners Court could legally condemn
private property for an easement or a road-
way to said river, to be used by the flsh-
aping public to get to the said river to,flsh
therein, without having to follo# the banks
and meanders of the said stream,
Inasmuch as your first question involves prl-
vate rights, we are not permitted by law to answer same.
Therefore, we shall confine our remarks to question Ho.
2 of your request.
Article 2351j V. C, S., provides, in part,
ttit:
“Each commissioners court shall: . D
‘3- Lay out and establish, change and”
discontinue public roads and highways. . +
Article 6703, V, C. S., provides, in Art, as
f 0110ws:
“The commissioners court shall order
the laying out and opaning of public roads
when necessary, a S : ,,
In the case of Havenbekken v. Coryell County,
lion, Otto P, Moore, Sr., page 3 (V-675)
112 Tex. 422, 247 S.W. 10&j, the court said:
“Commissioners I courts are created
by the Constitution, and are given by its
express terms such powers and jurisdiction
over all county business as are conferred by
the provisions thereof, or by the laws of
the state. The statutes confer upon such
courts full power and jurisdiction to lo-
cate, establish, and open public roads and
to condemn the land necessary therefor. In
the exercise of these powers they are courts
of general jurisdiction, and the validity of
their proceedings is to be determined by the
rules applicable to such courts. Having ac-
quired jurisdiction of the subject-matter
and of the party or parties, they may, ex-
cept as restrained or prohibited by law,
exercise su$h powers according to their
discretion.
Inthe case of Bradford v. Moseley, 223 S.W.
171, the court said:
“What is a public road is in a measure
dependent on the facts of each particular
case, but the character of a road does no+
depend on its length, nor upon the place to
which it leads, nor is Its character deter-
mined by the number of people who actually
travel upon it. Decker v. Nenard (Civ. App.)
25 S.W. 728; Elliott on Roads, Sets. 1 to 7.
A road may be established which is a cul-de-
sac*, Id. A road open to the public is a
public road, thovh one person may be most
benefited by it.
In Vol. 1, paragraph 9, 4th Ed., Elliott on
Roads and Streets, page 11, it is stated, in part:
“Public roads are such as are open to
the public and are under the control of
the state nor its governmental lnstrumen-
talities, as counties, townships, road dis-
tricts and local subdivisions of a similar
oharac ter a Such roads are set apart to the
public,,and are maintained at the public ex-
pense.
Hon. Otto P. Moore, Sr., page 4 (V-675)
Also in the same Vol. paragraph 215, page 260,
we find:
‘Roads and streets used by the public,
with a right in all the public to use them,
are undoubtedly public, and private proper-
ty may be appropriated for the purpose of
constructing such ways, The test is, not
simply how many persons do actually use
them, but, how many have a free and unre-
stricted right in common to use them;~for,
if the public generally are excluded, the
W8y mu6t be regarded as a private one; If
the public have the right to use ‘?..aeway’at
pleasure and on equal terms, it is 8 public
one, although in reality it is little used.
If it Is a public road, open to all who may
desire to use it, the fact that it accommo-
dates but a limited portion of the publio,
even where It is ordinarily used by only a
single family, $+s been held to make no
difference, . n
In the case of Bradford v; Rosely, supra, the
court in passing upon the question of necessity of a
pub110 road said:
n
. . 0 It is obvious from the atate-
rent of the case that the whole controver-
g,“,“g$g;,;g;;: ggy$! g;:yg; ‘f&
ty abuse the discretion .v.ested in it by law
in opening the road?
“This Is true because it is a par,t
of the statement of facts that evidence of
811 the statutory requirem*nts precedent to
the opening of the road W8S offered, and
that all were in due snd legal form, and
the trial court found that the commlasion-
ers I court determined that 8 necessits for
the rO8d existed, and that due notice-was
given. Such finding
have been the verdict%: ~‘.i~~d@g~
ad&e&l
In the same oase reported in 190 S.W. 824, and
reversed on’other grounds, the Court of Civil Appeals
held:
hon. Otto P. Moore, Sr., page 5 (V-675)
“The inference therefrom is that the
Legislature intended that the action of
the commlssioners’ court 8,s to the nec-
essity of the road, its proper locetion,
the form of the petition, the qualifics-
tion of its -signers, and all other issues
save that relatlII nfghgt;;fifg~~~ 1 shou1d
be conclusive.
Also the Supreme Court in this case further
aaid in’223 S.W. at page 173:
“latitude snd discretion is allowed
commissioners ’ courts in the matter of open-
ing roe.ds, a.nd, it being their duty to open
road ‘when necessary,’ they may act upon
their own motion. Huggins v, Hurt, 23 Tex.
Civ. App. 404, 56 S.W. 944; Allen v. Parker,
23 Tex. Civ. App. 536, 57 S;W, 703, writ of
error denied.
“The language of the statute (subdi-
vision 7, art. 2241) as to ‘the power and
duty of the commissioners1 court as to
courthouses and jails’ is exactly the same
as is subdivision 3, relating to roads, and
it has been expressly held that the exer-
cise of that power is left to the disfre-
tion of the commissioners’ court, 3 a
The answer to your second inquiry depends en-
tirely Upon a fact finding by the Commissioners’ Court
that the proposed roe& is neoessary for public use. Its
discretion Is final unless clearly abused. If all of
the statutes are complled’with, and the Commissioners1
Court finds that such public road is a necessity, then
in view of the foregoing, it is our opinion that the
Commissioners’ Court may condemn private property for
such a road.
SUMMARY
Whether a public rO8d is a necessity
is 8 fact question to be ascertained by the
Commissioners’ Court. If the statutes are
complied with and the Commissioners’ Court
. . .
Bon. Otto P. Moore, Sr., page 6 (~-6731
finds that a public road is a necessity,
it may condemn private property for such
a road. Bradford v. Moselej, 223 S.W.
171; Articles 2351 and 6793, V. C. S.
Yours very truly,
ATTORREYGENERALOF TEXAS
..I. j
.r..,~d. .@,
BA:lSW
Bruce Allen
Assistant
M'!PORRRYGERERAL