Awwt 25, 

### 1950

Hon. Roy L. Hill opiniorr ao. V-1098. County Attorney Runnels County Re: Authority of the CounRalllnger , Texas tg to prevent a land owner frcm closing a Dear SFr: road across his land.

Your request for an opinion reads in part as follows :

‘In the year 1939, a numberof citizens together with the owner of land, over which the road was established, agreed on the community using the road across his ranch; t&s was a permissive and agreeable

‘,use onthe part of the owner. They sought help from the County in maintaining the road, and the Commissioner used his machl.nery in gram, filling in, building cattle guards, etc. onthe road, and such work is still being done, as I understand. The road is nov, andhas been used by the general publio, anda school bus route has been maintained and Is nov being so used on this road. he son of the original ovner nowwants to close the road

. . ." You ask vhether the landovner csn close the road in question.

It washeld In Evaus v. Scott, 83S.N. 874, 877 (Tex.Clv.App.1904):

” There were twotheories upon vhlch ihi ippellees sought to restrain appellant from Interference with the publlcts use of the roadand the closing ofthe same; First, an Implied dedication to such use by appellant and those under whcun he claimed; second, the acquisition of the right on the part of the public to use the road by prescription. These respeatlve olalms ofright to the we of a highway rest upon and are

## 678
Hon. Roy L. Hill, page 2 (V-1098)

‘

. governed by essentially different principles 

### of law. It iS eaid that an Implied dedication is one arising by operation of law from the acts of the owner,and is founded onthe doctrine of equitable estop 41. Elliott ,011 Roads andStreets (26 %k1 It is essential in such case !d”,&er Intended to set the land apart to the use and benefit of the public. This need not be evidenced 

### by deed.

‘It Is enough that there has been scme clear, UmqtiVocal act or d8claFatlon of the proprietor evidencing anintention to set it apart 

### for a public use, *and that there has been an acoeptauce onthe part of the public. The length of time the

..road has been used by the public is of no consequence, unless it becomes Important, in connection with other circumstances, to showan intention onthe part of the 

### owner of the land to dedicate it to the public eOswaldv. Grenet, 22Tex. 94; Preston v. City of Navasota, 

### 34 Tex. 

### 684; City of Corslcana v. Anderson (TexXlv. App.) 78S.X. 261; Elliott onRoads dc Streets, Sg

### 160, 161. Unlike animplied dedication, which as ve have seen, operates byway

### ofes~oppel ln pals rather than by grant, a right by

### prescription rests uponthe presumption that the own

### erof the land has granted the easement, and that the grant has been lost. City ofAustin v. Hall. 93Tex. 591, 

### 57 S.Y. 

### 563; Saunders v. Simpson (Tenn.Sup.) 

### 37 S.W. 195. Tosustain this claim it is not neaessary to showintent on the part of the ownerof the land to set apart the road to the use of the public, andthe e:ement of acceptance Is not Involved; vhereas the length of t-8 the’road baa been used by the public is the foundation upon which the cla$m rests, and the use upon which the right is predicated must have contlnued uninterrupted under auadverse ‘claim of right’ for the full prescriptive period.

. . . Thepublic’s right of prescrlptlon to ahighway is not dependent uponthe recognition of that right by the mnlclpal authorities of the**i**
Ron.

. Roy L. Bill, page 3 (V-10@) 

## 679

county, but is acquired by adverse use for the time aridIn the manuerprescrlbed by the rule8 of lav to whichwehave adverted. Acts done by the munlclpal authorities of the county In reoognltion of the road in question as a public hi vould doubtless befacts or fhuay circmm ances evidenci p41144~s2 the aCCOpbtnC8of it under ap

### heory of dedication, but the absence of such acts vould not prevent the acquisition of the right onthe part of the public to use the road by preecriptlon. Public use i.wthe mamer stated andfor the necessary 

### periodof prescription establishes the public right as firmly as if It hadbeen created by an express grant. Furthermore, a suit to establish a right to use away claWed 

### by prescription is in the nature of or analogous to a suit to recover land, based upon a title acquired byadverse possession under our statutes of llmitatlon, although the interest which maybe acqtiredby prescription is only an easement, and not en estate In fee; and, wherethe prescriptive period, as in this state, is not fixed by statute, weconclude the longest period of limitation In actions for land, which 1s 10years, till,by analogy, apply. Hencewehold that 10years is the 

### of prescription rlnthis state, and-t 

### erlod he court correctly so charged.' It washeld in Philll~s v. T. dcP. Ry. 296S.Y. 877, 880 (Tex. Comm.App.1927) that "the ublic mayby 

### adverse use for the prescriptive period, &l.ch 1s ordlnarlly 10years in this state, acquire the line of hlghvay in a road though the counties have not recognized it 

### as such.*

In Black v. Terry Countg, 183SV.26 685, 687 (Tex.Civ.App.l944), it washeld:

"The law is vell established in this State that whenever the ovners of land obtatamwledge of the fact that the county, "& the right tomintaina roadaud, acting hrough its road overseer, takes actual end visible possession of the land over which It runsby vorklngit or 

### Preparing it 

### for public travel, thereby asserting 

### a Clair

.Hon. RoyL. Rlll, page 4 (V-1098)

to it for the public in such mannerthat the ovners, if present, would have ascertained the fact that the road vas being established In behalf af the county and the public general1 ltation or en the period of llmprescrip Ion begins to run. Thetestimony shows that J. S. Black had possession of the entire Section 25 until his death and since MS death, J. Ii. Black has nW.ntained possession for himself and the other appellants oonstantly and continuous1y. Headmitted in his testimony that there probably wasa road or passagevay along the north line of Section 25 ever since the Forrlster schoolhouse was erected, and stated that heput someof the section In cultivation in 1928. But whether any of the appellants hadactual know14 to the“&4 of the road or not, according

estlmony it waslaid out by the citizens of Terry Countyandworked or
‘scraped out’ in 1924by the county authorities and graded by themin 1927. EvenIf the appellant, J. B. Black, who represented the other appellants, did not have actual knowledge of the establishment of the road, hevas charged with such tiowledge because heundoubtedly would have ho!in about it if hehadbeen present at the time andwould have lmownof the public travel over it at anytime afterwards. These acts of establisblng the road and the general travel over it having occurred more than nfneteen years before appellants filed this suit or madeany effort to discontinue the road, the County and the public scrlptlon.” acquired title to it by pre-

... In view of the foregoing, it is ow oplnlon that vhena county maintains a road by working it or preparing it for public travel, thereby asserting a claim to it for the public in such a mannerthat the road is established for the benefit of the county andthe public generally, the period ofprescription begins to run. The period of prescription in this State is 10years. Uhethor the Poad In question has been acquired by Runnels County by rescription is a fact question which this ofii fice canno answer.

### I

.._

Hon. Roy L. Hill, page 5’ (V-1098) 

## 681

SUMMARY A county mayacqoire a public road by prescription, which Fnthis State is 10 years. Uhena countymalntains a roadby vorlslng it or preparing it for public trav- ' 41, thereby establishing a claim to the road for the public in such amanor that the road is establlshed for the benefit of
the couuty and the public generally, the period of prescription begins to run. APPROVED% Yours very truly, J. C. Davis, Jr. PRICEMRIRL County Affairs Mvlslon Attorney General Everett Hutchinson Executive Assistant Charles D. Mathews First Assistant JR:mf:mw B%5-ezcAv~Assistant,