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 

a public 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 a bridge 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 shut gates 

extending from one side of the road to the center of 

the road? (2) If this 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 of way 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 in the Ease of 

Jelly v. State, 19 Cr. R. 76, that the eaucrti,ion of a gate aq,ross the 

public road constitutes an ille,grl obstru@ian ef, the road. We have 

feutxd ne dasas holding that a ,d,*ttile gu8M @un,sqi);uteo an illegal 

ob~f~u&iozi. HaweJer, in a prier opinion I$J o. 034695, tJIe Attornty Gcnaral ruled that the Cammissioners~~ Court of, T,pavis County 

had no authority to construct c,attle guards across public roads in 

Travis County and that cattle guards constituted an obstruCtion. 

In 21 Texas Jurisprudence, page 723; 724, under the heading “What is an Obstruction,” it is stated: 

“Evidence having been given of an artificial, physical obstruction to travel, it ia,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 of the dead to lass c$halrjits legal width is 

an ebstruttion, and any cbetruction 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 afiy psrmanaq$ inte,rfere.nce with 

the public right is an obstrubtireo, alt&ugh, regarded 

physically, the def&danB has net in faeih elMtrusted public 

travel, Thus a cons&&ion was affirmi$d where ~#re ebstruction $onsi.atod of #Qttiing the. geadway, pu%ting a culvert adaoss if., and le$&ig t+e r’ed i& a e@&t&n not as 

good a8 beforC. Fencing aIeng a ?teem &em a bridge 

l pprersh to the road Yeundary is’ likewi,se a legal abst~,~c%ia&. And of course an inclosure of part of the read 

by another dees net justify the, defendant’s inclosure of 

the, ramaWng part.” 

A,rticle 6794 of V&S, authorizes the Commissioners Court 

of any oour&ty in the State ,@entaining a population of not less than 

5690 a&d not 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 a public road in your county would constitute an obstruction and would be 

in violation of Art, 784 of the 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 

a public read, causing drivers of animal-drawn vehicles 

to have to eq,brr aPI* &t&t gabs extending from oae side 

of the road to the center of the road, would constitute an 

illegal obstruction of %hc road. Art, 704, V.P.C. 

2. It is net legal for Hqekins County to pay fer the 

censtructlan of a bridge, gate and #aWe guard acres8 a 

public mad SO a8 eu prevmt 6bt owaor of 6ht lad rdjeieing 6hc road from having to fence his land along the 

right of way on both aider of the road. 

Ymmre very truly, 

ATTQMEYBENEIMLOFTEXAS 

E. Cranshow 

A 6 alWant 

CEC: rt 

AE2M.A 

ATTORNEY OENERAL OF TEXAS