R-333



## EATTORNEYGENERAL OFTEXAS

PRICE DANIEL AUSTIN 11. -lkxAs .@.TTORNEY

GENERAL May 1, 1947

Hon. Newell Cambron County Auditor Hopkins County Sulphur Springs, Texas Opinion No. V-177 Re: Legality of placing cattle guards and gate across a public road rather than fencing the adjoining land. Dear Sir:On the following facts, you ask two related questions:

“A man in our county owns land on both sides of apublic road. In order to keep from constructing a fence on both sides all along the road, he wants to build a cattle guard from the center of the road to the edge of the road on one side and abridge from the center of the road to the edge of the road on the other side. Motor vehicles passing along the road could pass over the cattle guard without having to stop. .,Wcgons and other horse-drawn vehicles would have to stop, open a gate extending to the center of the road adjacent to the bridge and go through the same procedure at another point on this road where this man’s property ends. We would like for you to answer two questions far us: (1) Is it legal to obstruct a road to the extent of causing drivers of animal-drawn vehicles to have to open and shutgates extending from one side of the road to the center of the road? (2) Ifthis procedure is legal, would it be legal for the county to pay Ter the construction ofYbe proposed bridges, gates and cattle guards if the only purpose 

### served by this procedure is to prevent the owner of the land adjoining the road from having to fence his land along the right ofway on both sides of the road? Article 784 of V.P.C. provides as follows: “Whoever shall wilfully obstruct or injure or cause to be obstructed or injured in any manner whatsoever any public road or highway or any street or alley in any town or city, or any public bridge or causeway, within this State, shall be fined not exceeding two hundred dollars. ‘(Acts 1860, p. 97; Acts 1913; p. 258.)”Hen. Newell Cambren, Page 2 

### Op$nien No, V-177

Under the above statute,, it,bar beqn held inthe 

### Easeof Jelly v. State, 19 Cr. R. 76, that the eaucrti,ionof a gate aq,ross the public road constitutes an ille,grl obstru@ian ef,the road. We have feutxdne dasas holding that a ,d,*ttilegu8M @un,sqi);uteoan illegal ob~f~u&iozi. HaweJer, in a prier opinion I$J

### o. **034695, tJIe** **Attor** nty Gcnaral 

### ruled that the Cammissioners~~ Court of,T,pavis County had no authority to construct 

### c,attle guardsacross public roads in Travis County and that cattle guards constituted an obstruCtion.

In 21

### TexasJurisprudence, page 723; 724, under the heading “What is an Obstruction,” it is stated:

“Evidence having been given of an artificial, physical obstruction to travel, itia,irn~i?iMl thin the&fendant’s structure encroao.hes upen only part of the rmadway and that the remaining part leaves ample space for travel. Aay 

### narrowing ofthe dead to lass c$halrjitslegal width is an ebstruttion, and

### anycbetruction that interferes with the road in the sense &making it less convenient for travel is an offense. HoweVct,, the oonven*gnce of the public 

### is not 

### the sole test, fer 

### afiypsrmanaq$ inte,rfere.nce with the public right is an obstrubtireo, alt&ugh, regarded physically, the def&danB has net in faeihelMtrusted public travel, Thus a cons&&ion was 

### affirmi$d where ~#reebstruction $onsi.atod of #Qttiingthe.geadway, pu%ting a culvert adaoss if.,and le$&ig t+e r’ed i&a e@&t&n not 

### as good 

### a8beforC. Fencing aIeng a ?teem &em abridge 

# l pprersh to the road Yeundary is’ likewi,se a legal abst~,~c%ia&. And of course an inclosure of part ofthe read by another dees netjustify the,defendant’s inclosure of the,ramaWng part.” A,rticle 6794 of V&S, authorizes the Commissioners Court of any oour&tyin the State ,@entaining apopulation of not less than 5690 

### a&dnot more than 5750 inhabitants according to the last preceding Fedsral 

### Cttisuci, ‘to @enstruet, cattle guards acs,oss any and all fir@, second or third class of roads in such county. This Act fur&e) provides “such Qrttlt guards shall, not **be** classad or aonsider:rd as obstruction en said 

### read,* An sxaminatiion of the last Fadepal Census of your county shews the pepulation of Hopkins County is more than that described in S+l?tien 4 above mtntioned. Consequently, no authority is axtended ts yeux county undar this provi- +bprpeven;ff the provision should be a~uenSti&tional act.

It is cur epinien that a gate and cattle guard 

### across apublic road inyour county would constitute an obstruction and would be in violation ofArt, 784 ofthe Penal Code above quoted. It necessarily follows that IIopkins C&my is not authei,ized to pay the cost of $uch gate and cattle guard,, ’



### Hon. NewaIl 

### Cambron, Page 3 Opinien No. V-177

1. The **erection** 

### of a ga$s **and** 

### c~ttla guard across apublic read, causing drivers of animal-drawn vehicles tohave to eq,brraPI*&t&tgabs extending from oae side ofthe road 

### tothe center ofthe road, would constitute an illegal obstruction of %hc

### road. Art, 704, V.P.C. 2. It

### is net legal for Hqekins County topay fer the censtructlan of 

### abridge, gate and #aWe guard acres8 a public mad SO

### a8euprevmt 6bt 

### owaorof 6ht 

### lad rdjeieing 6hc **road** 

### from having to fence his land along the right ofway on both aider 

### ofthe **road.** Ymmre**very truly,**  

### ATTQMEYBENEIMLOFTEXAS

E. Cranshow A6

### alWant CEC:rt 

### AE2M.A

ATTORNEY OENERAL 

### OF TEXAS