Honorable Fred P. Holub 

County Attorney 

Matagorda County 

Bay city, Texas 

Opinion NO. c-398 

Re: Whether accretion added to 

the end of a dedicated 

street becomes a part of 

such street, and if so, 

whether the accreted portion 

of the street has been abanDear Pk. Holub: doned under the stated facts. 

Your letter recites dedication to the public of the 

streets of the Original Townsite of Matagorda as a result 

of the filing of the plat of said town for record some years 

ago. The town being unincorporated, the streets thereof are 

maintained by the county. Some lots fronted on the bay and 

certain streets of the city ran up to the bay. Thereafter, 

through accretion, the land advanced three or four miles so 

that the streets are capable of being extended this distance 

to the present line of the bay. However, the intracoastal 

Canal separates the original dedicated portion of said 

streets from the accreted portion. 

The digging of said canal has resulted in a barrier to 

the extension of such streets. The county has never maintained such extended streets, nor have they been used by the 

public. 

You request our opinion as to what rights the county has 

in the extended streets, your letter pointing out that this 

requires a determination, first, of whether the extensfions 

onto the accreted area are a part of the dedicated streets, 

and second, whether the streets in the accreted area have 

been abandoned. 

As to the effect of accretions, It Is well settled that 

natural accretions belong to the riparian landowner. State 

v. Balli 144 Tex. 195, 190 S.W.28 71 (1944 

ETYTCE& 159,93x. 500, 324 S.w.2d 167 (195 B j. However, in 

And see Luttes 

this case, the riparian land Is a dedicated street, over 

which,~by virtue of the recording of the townsite plat, the 

public has an easement. 21 T.J.2d 149, Easements, Sec. 24. 

-1874- 
Honorable Fred P. Holub, page 2 (C-398) 

In Qibson 180 S.W. 630 (1915), the court 

said that a alat setting aside tits streets is an irrevocable conveyance, and-that "when-he recorded his map 

showing a street at a place where he had the right to acquire land formed by accretions, . . . he conveyed to the 

public those rights and such others as he had." 

In Curry v. Port Iavaca Channel and Dock Company, 25 

S.W.2d 987 reet running 

along the bayshore. The court said: 

~"Thus, same cuts off all lots or subdivisions from the bay, and destroyed all riparian 

rights." 

In both cases, the quoted language is admittedly, dictum. 

We have found no other Texas cases on the question. 

In point is Horgan v. Town Council of Jamestown 80 Atl. 

271 (R.I.. 1911). A street ran across the town to tie sea. 

The claimant-buiit a bulkhead and filled in an area between 

the end of the street and the sea. He then built a stone 

wall blocking access from the street to the sea. The court 

said: 

"The way having been dedicated to the 

public, the public right in said way is not 

lost by nonuser or by adverse possession, 

however long continued (citing cases). This 

right of access to navigable water dedicated 

to the public, and not lost by mere nonuser, 

will attach itself to any extension of the 

upland at the end of said highway whether 

such is an accretion arising from natural 

causes depositing soil at the end of the 

highway, or was caused by human activity, 

either rightly or wrongfully exerted. . . . 

That all accretions to a public highway 

terminating at a navigable water attach to 

and form part of the highway is amply supported by authority." 

In The Schools v. Risley, 77 U.S. 91 (1869), a street 

ran along the banks of the Mississippi River. Six or seven 

hundred feet of alluvion was formed next:to the ~orlginal~. 

bank and a new street was established on the accreted bank. 

The court upheld the following instruction: 

-.1875- 
Honorable Fred P. Holub, page 3 (C-398) 

"That if the jury believe . . . that~ 

a street . . . was permanently established, 

for the public use . . . the owner or owners 

of that block were not r'iparian proprietors 

of the land between that block and the river." 

In New Orleans v. United States, 10 Peters 662 (1836), 

an ancient map of the New Orleans area showed a vacant space 

along the banks of the river, designated on the map as a 

"quay. ' This was a public common. The court said: 

"It appears that this quay has been 

greatly enlarged, by the alluvial formations of the Mississippi River. . . . 

If the dedication of this ground to public 

use be established by the principles of 

common law, is it not of the highest importance that the accumulations of the vacant 

space, by alluvial formations, should partake of the same character, and be subject 

to the same use as the spoil to which it 

becomes united? . . . If the city can claim 

the original dedication to the river, it has 

all the rights and privileges of a riparian 

proprietor. . . . This enlargement of the 

quay cannot defytat or impair the rights of 

the city. . . To the same effect see 

Barney v. Keok;k, 94 U.S. 324 (1876). 

Prom the foregoing authorities, and assuming that the 

three or four miles extension was naturally caused by accretion independent of the hand of man, we conclude that as 

the land accreted at the end of the streets in question, the 

streets continued to advance with the accretion to the new 

line of the bay. We are assuming that the Intracoastal 

Canal was cut through the accreted area. Of course, if the 

accreted area was actually an island arising from the bed 

of the sea, as distinguished from an accretion to the mainland, it would belong to the State. Gv 19 

'rex. 366, 278 S.W.2d 830, 835 (1955). 

We emphasize in rendering this opinion that we have 

relied strictly on the facts as stated in your request and 

as restated in this opinion. We have made no independent 

investigation regarding the area of land in question, its 

creation, progression, method of progression or cause for 

its growth. 

-1876- 
Honorable E'red P. Holub, Page 4 (C-398) 

Incidentally, we point out that public roads belong 

to the State, and not to the county. Robbins v. Limestone 

Count;y, 114 Tex. 345, 268 S.W. 915 (1925). The court, however, stated that the county is "authorized and charged with 

construction and maintenance of the public roads within its 

boundaries." See also State v. Hale, 136 Tex. 29, 146 S.W.2d 

731, 736 (1941); 28 Tex.Jur.2d 165, Highways and Streets, 

Sec. 135. 

A title or easement for street purposes mav not be 

lost by adverse possession. Article 5517, Ve 

Statutes. See also G. H. & S. A.-Ry~, 

~asa, 249 S.W. 268, rev 

:r&n's Civil 

Co. v. City of Eagle 

'd o.g., 260 S.W. 841 (1923). 

Authority for closing roads by the county Is found in 

Articles 2351, 6703, 67o3a and 6705, Vernon's Civil Statutes. 

Also see Article 6673a, Vernon's Civil Statutes, authorizing 

the State Highway Department to make conveyances of public 

roads. And see Article 6674q-9, Vernon's Civil Statutes, 

authorizing the abandonment of public roads, but the method 

of making the abandonment is not defined. We assume from 

your letter that there has been no formal abandonment of 

the road by the county. 

At the outset, we n&e that the forfeiture of easements 

is not favored by the courts (28 C.J.S. 716, Easements, Sec. 

52), and that the burden is on the person asserting abandonment to prove it (39 C.J.S. 1066, Highways, Sec. 130; 

McQuillin on Municipal Corporations, 3rd Ed., Sec. 30.208, 

vol. 11, p. 171). 

As reflecting the possibility of abandonment, your letter 

points out what appears to have been long delay in opening 

the streets, the nonuser thereof by the public and the difficulties of access occasioned by the dredging of the Intracoastal Canal. 

It appears to be wsll settled that mere nonuser by the 

public, including long delay in opening the streets, will 

not, standing alone, establish abandonment. City of La&awe 

WP? 

161 S.W. 8, (1913, error ref.); Adams v. Rowles, 

1 g ex. 52, 228 S.w.2d 849, 852 (1950); Holt v. Texas Midland 

R.R. Co., 160 S.W. 327, Panhandle, etc. Ry 

Hurst 251 S.W. 538, 

(1 13); . co. V. 

&.S. 54. 

(1923 3 ; 25 Am.Jur. 411; 39 C.J.S. lOb9; 

-1877- 
- 

Honorable Fred P. Holub, page 5 (C-398) 

As to whether the existence of the canal, ?rlth the 

resulting difficulty of access to the extended streets, 

results in an abandonment, requires an application of the 

rule first announced in this State In the case of Griffith 

v. Allison 

the court held that abandonment of an easement 'occurs when 

128 vex. 86, 96 S.W.2d 74, 77 (1936). There, 

the use for which property is dedicated becomes impossible, 

or so highly Improbable as to be practically impossible, or 

where the object of the use for which the property is dedicated wholly fails." 

In Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 

922 (1942), the Supreme Court appears to announce a slightly 

different rule when it refers to the "universally recognized 

rule that, while abandonment may be established, like any 

other facts, by circumstances, yet those circumstances must 

disclose some definite act showing an intention to abandon 

and terminate the right possessed by the easement owner. 

The material question is the Intention to abandon and that 

intention must be established bv clear and satlsfactorv evldence. A mere nonuser of an easement will not exCinguish 

lt.N Perry v. City of Gainesville, 267 S.W.2d 270, 274, 

(3954), follows thZs rule. 

In a still later case, the Supreme Court In Adams v. 

Rowles, 149 Tex. 52, 228 S.W.2d 849 (lg50), cited the Miller 

case, supra, but only for the proposition that nonuser will 

not extinguish an easement. For the general rule, it returned to the rule of the Griffith case, supra, of finding 

abandonment if the dedicated use is "impossible or so highly 

imorobable as to be oracticallv imnossible". or If the object 

of the deuicated use-has wholly failed. This rule was again 

recognized b 

Tex. 427, 25 8 

the Supreme Court in MaMa 152 

S.W.2d 797 (1953) and In Zac&y City of San 

Antonio, 157 Tex. 551, 305 S.W.2d 558 (1957), zierein the 

court In a park case stated: 

"To constitute an abandonment of dedicated property use for which property was 

dedicated must become impossible of execution or the object of the use must wholly 

fail." 

It will be noted that in this language, the court makes 

no distinction between "impossible" and "practically Impossible." 

-1878- 
Honorable Fred P. Hollub, page 6 (C-398) 

In seeking to apply the rule as thus announced, we note 

the statement in your letter: 

"In this case, the lntracoastal Canal 

has hindered the use of the street added 

by accretion and up to now has made it impractical to maintain, but to say that it 

is impossible or improbable in this day of 

modern machine and growing population would 

not be correct." 

We agree. While the existence of the canal does pose an inconvenience, the use of ferries and bridges, including draw 

bridges, is common place in the establishment of streets and 

highways. Further, we find nothing in the existence of the 

canal to indicate that the object of the street dedication 

has wholly failed. 

It follows from what we have said that under the 

authorities cited, we are of the opinion that the facts as 

stated by your are not sufficient to establish an abandonment. This holding, however, is limited to the facts as 

stated by you. A very excellent and exhaustive review of 

the authorities is found in 171 A.L.R. 87. At page 132 it 

Is stated that whether there is an estoppel on the part of 

municipal authorities to deny an abandonment "depends 

largely upon the combined effect of the circumstances presented in the individual case." 

For example, in Magee Heirs v. Slack, supra, the court 

held that where a "dream city" collapsed and was never developed, the object of the dedicated-use of the streets had 

wholly failed, and hence there was abandonment. 

In Plunkett v. Young, 375 S.W.2d 776 (error ref., n.r.e., 

1964 1, a portion of the road was under water and a jury findlng of abandonment was upheld as not being against ,the-great 

weight of the evidence. 

For other general discussions of the problem, see 

McQuil1i.n on Municipal Corporations, 3rd Ed., Sec. 30.182, 

vol. 11, p. 100, et seq., 

4th Ed., Sec. 

and Elliott on Roads and Streets, 

1172, vol. 2, p. 1668, et seq. 

Assuming that there are no additional facts evidencing 

abandonment other than as outlined in your letter, we are of 

the opinion that the failure to open such streets on the bayward side of the canal, the nonuser of such streets by the 

-1879- 
. - 

Honorable P'red P. Holub, page 7 (C-398) 

public and the existence of such canal, do not render the 

usage or sucn properties for street purposes "Impossible of 

execution", and therefore there has been no abandonment. 

Under such circumstances, as pointed out in Robbins v. 

Limestone County, supra, the county is authorized to construct and maintain such extended streets. 

SUMM4RY 

The bay in front of the unincorporated 

Town of Matagorda has receded as much as 

three or four miles as a result of accretion. 

Streets running to the bay were dedicated to the 

public in the recorded plat or the Original 

Townsite of Matagorda. As the accreted land 

advanced the dedicated streets were therby 

extended so as always to reach the bay. The 

Ihtracoastal Canal now separates the orlginal 

streets from the accreted area. Such streets 

bayward of said canal have never been opened 

by the county, and the public has never used 

same. The facts aforesaid do not establish 

an abandonment of the extended streets. There - 

fore, under the facts stated, the county is 

authorized to construct 

JAS :ms 

and maintain same. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

stant Attorney General 

-1880- 
Honorable Fred P. Holub, page 8 (c-398) 

APPROVED: 

OPINION COMMITTEE 

W. V, Geppert, Chairman 

Milton Richardson 

Ben Harrison 

Malcolm L. Quick 

Jerry Brock 

George Black 

APPROVED FOR THEATTORNEYGENERAL 

By: Stanton Stone 

-1881-