### EXAS

Honorable E. Paul Banner County Attorney Hunt County Greenville,Texas OpinionNo. 

### C-389 Re: Whether persons entering a state highway right of way enclosedby an unauthorized fence, can be prosecuted under Article 1377b,Vernon’s Penal Code, and related questions. Dear Mr. Banner: Our opinion has been requested on five questionsbased on the following fact,6 as submitted **by you.**  “The owner of land adjaoent to both sides of a statehighwaybridge (whichcrosses the Sablne River)
. . .has built and maintains a stockpass and private underpass underneath said highway bridge.” Both tracts of land connectedby the stockpass are situated on the north side of the Sabine River. The landbeing used for the road and bridge~hasbeen acquired in part by prescriptive easement created in favor of thepublic in general for roadpurposes and in part by deed to the Texas Highway Department. Permission to use the landunderneath the bridge for a stockpasswas granted to the landowner in a letter from theDistrict Engineer of the Texas Highway Department, but a written agreement has not been executedby the parties. While attempting tomake a complete enclosure,you state that a fence encloses the land on three sides and runs along the side of thebridge and underneath thebridge. The fence does not cross the river but “goesdown to the water’s edge, and cattle cannotgo up and down the riverbelow the fence.
. . . The water stands 10 to 20 feet deep in the river - cattle never cross it.” Gates have been placed under the bridge along the fence for the “useof the Highway Department in making repairs to the bridge, etc.”

-1840-Hon. E. Paul Banner, page 2 

### (C-389)
"Peoplego through the gates and some of them camp under the bridge, and they leave the gates open on many occasions, and theyprevent the owner of the use of the easement for grazing,
. . .and people fish from the bank,
. . . and landboats on to the river." You have further advisedus that theportion of Sabine River involved in this matter comeswithin the purview of Article 

### 4026b,Vernon's Civil Statutes, and is 'non-navigable" in so far as all hunting and fishing rights on and along said stream are concerned,provided, however, that the State of Texas is not divested of whatever title itmay have to the bed or waters of said stream. In connectionwith these facts,you have requested the opinion of this office as to the followingquestions:

"1
. Can an individualwho is not an employee or agent on dutywith the state highway department be prosecuted for trespassingunder Article 1377b, Section 1 (c) of Vernon's Penal Code if they go upon the easementunder such conditionsas described above? "2
. Can an individualbe prosecutedunder Article 

### 1352for failure to close the gates above described that are provided for access for the highway department only? 

### "3
. Canan individualbe prosecuted for campingunder a bridge on the highway, if there is not a fence or stockpassunder such bridge? "4. Does a flat,metal stock gate, the type thatyou drive across on a road, constitutepart of a fence to form an enclosure for the purpose of prosecutionunder Article 1377b, Section 1 (cl? 

### "5
. Can an individualbe prosecuted for crossing a stockpass and crossing over the easement to land a boat or fish on the banks of a streamalong such easement,when such stockpass is fenced and enclosedunder Article 1377b, Section 1 (b)?

-1841-Hon. E. Paul Banner, Page 

### 3 (C-3p9)

We will answeryour questicdlsin the order theywere submitted. Question No. 1 involvesArticle 1377b, Section 1 (c), which reads as follows:

“TheArticle 6674n-1 Vernon's Civil Statutesprovides that Texas Highway Departmentmay enter intowritten agreements with owners of the lands abutting or adjoining the lands acquiredby the Department for right of way for any highway, farm to market road, or other roadway in the State Highway System, under the terms of which such owners of abutting or adjoining landsmay be authorized to use and cultivate suchportions of the right of way at may not be required for immediateuse of the department.
. . . "Such agreements shall be executedby the owners of the adjoining or abutting lands and the StateHighway Engineer or his authorized representative." (Emphasisadded.)

"Noperson shall enter or attempt to enter upon the enclosed land of another without consent of the owner,proprietor, lessee, or person in charge thereof,and camp or attempt to camp or in any,,manner encroach upon or damage such land.

The language of the statute indicates that the agreement is tobe in writing and signedby both parties, and that the agreement could not be authorizeduntil such formalities were observed. Gi~lbert v. Texas Co., 218 S.W.2d 906 (Tex. Civ.App., error ref. n.r.e.); "If the reduction of the agreement towriting is thusmade necessary, an assent to the writing as a sufficient one must also be manifested; thiz manifestation commonly consists of signingand delivery. Corbin 'onContracts,Vol. 1, Section 32, p. 

### 126. The letter from theDistrict Engineer referred to above does not constitute a written agreement as contemplatedby the statute. We thereforehold under the facts stated, that the landowner does not have the lawful authority to place a fence on the highway right of way and that a person who crossed the enclosure in order to reach the right of wa would not be in ;;;Ftion ofArticle 1377(b) Section 1 [c Ternon's Penal

. The answer to QuestionNo. 1 is No. Question No. 2 refers to Article 1352, Vernon's Penal Code, which is set forth as follows:

-1842-- .

Bon. E. Paul Banner, page 4 (C-389)

"If any person shallbreak, pull injure the fence of anotherwithout sent, or shallwilfully and without

__ down or his conthe consent of the owner thereof open and leave open any gate leading into the enclosure of another, or shall knowingly cause any hogs, cattle, mules, horses or other stock to go within the enclosed lands of another without his consent, or shall tie or stake out, or cause tobe tied or staked out to graze within any enclosed landsnot his own and without the consent of the owner any horse,mule or other animal, he shall be finednot less than tennor more than one hundred dollars, and in addition thereto may be imprisoned in jail not exceeding one year." The gates in question are gates leading to a stockpass located on a highway right of way without proper authority for placing them there, and in our opinion, it would not be a violation of this statute if theywere left openwithout the consent of the owner of the fence and gate. The answer to Question No. 2 is "No." We are unable to answeryour third question as you did not statewhether the landupon which the individual camped was within the enclosure of another. Article 1377b, Section 1 (Cl' Question No. 4 concerns the nature of an "enclosure" requiredunder Article 13'i"i'b, Section 1 (c)as defined in (d). The pertinentportion of (c) is quoted as follows: "Noperson shall enter or attempt upon the enclosed land of another.
. to znter

. . Article 137713,

Section 1 (d)defines follows: enclosed land as

"For the purpose of thisAct enclosed land shallmean such lands as are used for agriculture and grazing purposes or for any other purpose, and enclosedby structure for fencing either of wood or iron or conbination thereof or wood andwire, or partly by water and stream,, canyon,,

brush, rock or rocks,bluffs or island. The term "fence" in a statute in reference to the duty of a railroad company'to fence its tracts, includes cattle guards. 16AWords & Phrases 5 and cases cited therein. -1843- (_ -

3ion.E. Paul Banner, page 5 (C-389)
The Court in Burch v. State, 67 S.W. 500 (Tex;Grim. 1902)stated:

"Websterdefines a fence to be Itoenclose with a hedge, wall or anything thatprevents the escape or entering of cattle; to secureby an enclosure.1" **We** concludeunder this language that a fence which is partly constructedby using a metal cattle guard or flat metal stock gate comeswithin the definition of "enclosed land" as contemplatedby the statute No. 4 “yes”. , and we answer Question QuestionNo. 5 refers to Article 1377b, Section 1 (b), which is quoted below:

"Noperson shall enter or attempt to enter upon the enclosed land of another without consent of the owner,proprietor, lessee, or person in charge thereof, and catch or attempt to catch fish from any pond, lake, tank, stream or any body of water therein." The enclosed land in question is partially comgos$d of highway right of way,, and we answer QuestionNo. 5 ,No , in so far as it relates to the facts presented for our consideration.

SUMMARY -- Under the facts statedwhen individualspass through an enclosure constructedpartially on a highway right of way without proper authority for said construction, in order to reach the right of way, the individualsare not guilty of violation of Article 1377b,Vernon's Penal Code. Yours very truly, WAGGGNERCARR Attorney General of Texas h

Assistant ittorney General
cm :ms -1844-Hon. E. Paul Banner, page 6 (C-389)

APPROVED: OPINION CO-EE W. V. Geppert, Chairman Milton Richardson Paul Phy Grady Chandler George Black APPROVED FORTHEATTORNEYGENERAL By: Stanton Stone

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