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August 2, 1954

Hon. Austin F. Anderson Criminal DistrictAttorney Bexar County San Antonio 5, Texas Dear Mr. Anderson: Opinion No. S-137 Re: Purchase of right of way by county.

You have requested an opinion on the following questi.on:'WhetherBexar County can legally purchaseout of Road and Bridge Funds 1.24 acres of land from Mrs. Mantlna E. Rodriquez for a road to be known as Rodriquez Road, the purpose of which,,isto serve as an access road to a new County Park. According to the facts submittedwith your request, Bexar County has purchased 1.24 acres of .landfrom,Mrs. Martina E. Rodrjquez constitutinga 5O-foot right of way approximately 1,032 feet in length from an intersectionof U. S. Highway 90 West to a County Park locatednorth of such 'ntersection. The Commissioners'Court has designated the proposed road as a publ-i~c road and cansequcntly,part of the county road ~systern. Disi,,ute

has arisen as to whether such road constitutes,as a matter of law, a public road.

In Bradford v. Moseley, 223 S.W. l',:l (Tex-Corn.

App. 1920) the court in determiningwhat constituteda Fublic road stated:

"What is a public road is in a measure dependent upon the facts of each particular case, but the character of a road does not depend on its length,nor upon the place to which it leads,nor is its character determinedby the nu,mber of peoplewho actuallv travel uoon it. Decker v. Menard (Civ.ALP.) 2~1S.W. 728; Elliott on Roads 88 1 to 7. A‘roadmay be establishedwhich islacul-de-sac. Id. A road op'ento the public is a 'publicroad, though one person may be most,

benefitedby it. Galveston,etc. v. Bnudat, 18 Tex. Civ. ALP. 595, ,+', S.W. 939. It -i-s

a h,,f.:hway

1.i’ there :i~s

a general right 'touse it for travel, and if it i.s o;en to the use of all the people. Elliott on Roads, 85 l-3; Sum'r etc. v. Interurban, etc., 141 Tenn. 493, 213 S.W. TlS.. -

Hon.,

Austin F. Anderson, page 2 (s-137)

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**. .**  It is obvious from the statement of the case that the whole controversyresolves itself into one question: Did the Commissioners'Court of Palo Pinto Oounty abuse the discretionvested in it by law in opening the road? "This is true because it is a part of the statement of facts that evidenceof all the stat,utory requirementsprecedent to the opening of the road was offered, and that all were in due and legal form, and the trial court found that the commissioners' court determined that a necessity for the road existed,and that due noticewas given. Such finding was as binding as would have~been the verdict of a jury.'I Likewise, it is stated inRindge Company v. County of Los Angeles, 71923): 262 U. S. 700, 76 L.Ed. 1186, 43 S. Ct. 689

If0
. . It is not essentialthat the entire community nor even any considerableportion, should directly enjoy or participatein an improvement in order to constitutea public use.” In Attorney General'sOpinionV-1169 (1951)this officeheld that farm to market and lateralroads constituted any public road of the county leading either directly or indirectly from the farms to somemarket exclusiveof design nated State highways, citing Hastings v. Pfeiffer, 184 Ark. 952, 43 S.W.2d 1073 (1931).

In Attorney General's Opinion V-675 (1948) it was held thatwhether a publicroad is a necessity is a fact question to be ascertainedby the Commissioners'Court.

Since the road in questionhas been designatedby the Commissioners'Court of Bexar County to be a county road, and the road is open to the public, and is in fact adapted as a way of convenience for the public to travel to and from the County Park, it is our opinion that such road would constitutea county road and part of the county road system. Therefore, the purchase of this right of way may be paid for out of the Road and Bridge Fund of the County. Carroll v. Williams, 109 Tex, 155 202 S.W. 504 (1918).Hon. Austin F. Anderson, Page 3 (S-137)

SUMMARY A countyhas the authority to purchase,out of the Road and Bridge Fund of the County, land for a right of way to be used as a public road of the county leading from a County Park to an intersectionwith a designatedState highway. Yours very truly, APPROVED: J. C. Davis, Jr. County AffairsDivision JOHNBEN SHEPPERD Attorney General

W. V. Geppert Reviewer Enos F. Jones Reviewer Assistant

Robert S. Trotti First Assistant JohnBen Shepperd Attorney General JR:cs