HonorableFred P. Holub

CountyAttorney MatagordaCounty Bay city, Texas OpinionNO. c-398
Re: Whether accretionadded to the end of a dedicated street becomes a part of such street, and if so, whether the accretedportion of the street has been abanDear Pk. Holub: doned under the stated facts.
Your letter recites dedicationto the public of the streets of the OriginalTownsite of Matagordaas a result of the filing of the plat of said town for record some years ago. The town being unincorporated, the streets thereof are maintainedby 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 separatesthe originaldedicatedportion of said streets from the accretedportion. 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 accretedarea have been abandoned.
As to the effect of accretions,It Is well settled that natural accretionsbelong 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 

## j. However, in B And see Luttes this case, the riparian land Is a dedicated street, over which,~byvirtue of the recording of the townsiteplat, the public has an easement. 21 T.J.2d 149, Easements,Sec. 24.

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In Qibson 180 S.W. 630 (1915),the court said that a alat settingaside tits streets is an irrevocable conveyance, and-that "when-herecordedhis map showinga street at a place where he had the right to acquire land formed by accretions,

. . . he conveyedto the public those rights and such others as he had."
In Curry v. Port Iavaca Channeland 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 destroyedall 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: "Theway having been dedicated to the public, the public right in said way is not lost by nonuser or by adverse possession, however long continued (citingcases). This right of access to navigablewater dedicated to the public, and not lost by mere nonuser, will attach itself to any extensionof the upland at the end of said highway whether such is an accretionarising from natural causes depositingsoil at the end of the highway, or was caused by human activity, either rightly or wrongfullyexerted.

. . . That all accretionsto a public highway terminatingat a navigablewater 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 alluvionwas formed next:to the ~orlginal~. bank and a new streetwas establishedon the accretedbank. The court upheld the following instruction:

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"That if the jury believe

. . . that~ a street
. . . was permanentlyestablished, 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 Orleansv. United States, 10 Peters 662 (1836), an ancientmap of the New Orleansarea showed a vacant space along the banks of the river, designatedon 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 dedicationof this ground to public use be establishedby the principlesof common law, is it not of the highest importance that the accumulationsof the vacant space, by alluvial formations,shouldpartake 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 originaldedicationto the river, it has all the rights and privilegesof a riparian proprietor.

. . . This enlargementof 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 foregoingauthorities, and assuming that the three or four miles extensionwas naturally caused by accretion independentof the hand of man, we conclude that as the land accreted at the end of the streets in question, the streets continuedto advancewith the accretion to the new line of the bay. We are assuming that the Intracoastal Canal was cut through the accretedarea. Of course, if the accreted area was actually an island arising from the bed of the sea, as distinguishedfrom 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 progressionor cause for its growth.

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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 chargedwith 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 purposesmav 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 closingroads 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 HighwayDepartmentto make conveyancesof public roads. And see Article 6674q-9,Vernon's Civil Statutes, authorizingthe abandonmentof public roads, but the method of making the abandonmentis not defined. We assume from your letter that there has been no formal abandonmentof the road by the county. At the outset,we n&e that the forfeitureof easements is not favoredby the courts (28 C.J.S. 716, Easements,Sec. 52), and that the burden is on the person assertingabandonment to prove it (39 C.J.S. 1066, Highways,Sec. 130; McQuillinon MunicipalCorporations, 3rd Ed., Sec. 30.208, vol. 11, p. 171).
As reflectingthe possibilityof abandonment, your letter points out what appears to have been long delay in opening the streets,the nonuser thereofby the public and the difficulties of access occasioned by the dredging of the Intracoastal Canal.
It appears to be wsll settledthat mere nonuser by the public, including long delay in opening the streets,will not, standingalone, establishabandonment. 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 ; 25 Am.Jur. 411; 39 C.J.S. lOb9; 3

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HonorableFred P. Holub, page 5 (C-398)

As to whether the existence of the canal, ?rlth the resultingdifficultyof access to the extended streets, results in an abandonment, requiresan applicationof the rule first announced in this State In the case of Griffith v. Allison the court held that abandonmentof an easement 'occurs when 128 vex. 86, 96 S.W.2d 74, 77 (1936). There, the use for which property is dedicatedbecomes impossible, or so highly Improbableas to be practicallyimpossible,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 announcea slightly differentrule when it refers to the "universally recognized rule that, while abandonmentmay be established,like any other facts, by circumstances, yet those circumstances must disclose some definiteact showing an intentionto abandon and terminatethe right possessedby the easement owner. The material question is the Intentionto abandon and that intention

must be establishedbv clear and satlsfactorvevldence. A mere nonuser of an easementwill 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 propositionthat nonuser will not extinguishan easement. For the general rule, it returned to the rule of the Griffith case, supra, of finding abandonment if the dedicateduse is "impossible or so highly imorobable

as to be oracticallvimnossible". or If the object of the deuicateduse-haswholly failed. This rule was again recognizedb 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 constitutean abandonmentof dedicated propertyuse for which propertywas dedicatedmust become impossibleof execution or the object of the use must wholly fail."
It will be noted that in this language,the court makes no distinctionbetween "impossible" and "practically

Impossible."

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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 accretionand up to now has made it impractical to maintain,but to say that it is impossibleor improbablein this day of modern machine and growing populationwould not be correct." We agree. While the existenceof the canal does pose an inconvenience,the use of ferries and bridges, includingdraw bridges, is common place in the establishment of streets and highways. Further,we find nothing in the existenceof the canal to indicate that the object of the street dedication has wholly failed.
It follows from what we have said that under the authoritiescited,we are of the opinion that the facts as stated by your

are not sufficientto establishan abandonment. This holding,however, is limited to the facts as stated by you. A very excellentand exhaustivereview of the authoritiesis found in 171 A.L.R. 87. At page 132 it Is stated that whether there is an estoppel on the part of municipalauthoritiesto deny an abandonment "depends largelyupon the combinedeffect of the circumstancespresented in the individualcase." For example, in Magee Heirs v. Slack, supra, the court held that where a "dreamcity" collapsed and was never developed, the object of the dedicated-use of the streetshad wholly failed, and hence there was abandonment.
In Plunkettv. Young, 375 S.W.2d 776 (errorref., n.r.e., 1964 1, a portion of the road was under water and a jury findlng of abandonmentwas upheld as not being against ,the-great weight of the evidence.
For other general discussionsof 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 additionalfacts evidencing abandonmentother than as outlined in your letter,we are of the opinion that the failure to open such streetson the bayward side of the canal, the nonuser of such streetsby the

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

public and the existenceof such canal, do not render the usage or sucn propertiesfor streetpurposes "Impossible of execution",and thereforethere has been no abandonment. Under such circumstances, as pointed out in Robbins v. LimestoneCounty, supra, the county is authorizedto construct and maintain such extended streets.

SUMM4RY The bay in front of the unincorporated Town of Matagordahas 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 recordedplat or the Original Townsite of Matagorda. As the accreted land advanced the dedicated streetswere therby extended so as always to reach the bay. The Ihtracoastal

Canal now separatesthe orlginal streets from the accretedarea. Such streets bayward of said canal have never been opened by the county, and the public has never used same. The facts aforesaiddo not establish an abandonmentof the extended streets. There - fore, under the facts stated, the county is authorizedto construct

JAS:ms and maintain same. Yours very truly, WAGGONER CARR Attorney General of Texas

stantAttorney General

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APPROVED: OPINION COMMITTEE
W. V, Geppert, Chairman Milton Richardson Ben Harrison Malcolm L. Quick Jerry Brock George Black APPROVED FOR THEATTORNEYGENERAL By: Stanton Stone

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