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 number of 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 on the 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. on the road, and such 

work is still being done, as I understand. 

The road is nov, and has been used by the 

general publio, and a school bus route has 

been maintained and Is nov being so used 

on this road. he son of the original ovner now wants to close the road . . ." 

You ask vhether the landovner csn close the 

road in question. 

It was held In Evaus v. Scott, 83 S.N. 874, 

877 (Tex.Clv.App.1904): 

” There were two theories upon 

vhlch ihi ippellees sought to restrain appellant from Interference with the publlcts 

use of the road and the closing of the 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 of right 

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 on the doctrine of equitable estop 41. Elliott ,011 Roads and Streets (26 

%k 1 

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 an intention to 

set it apart for a public use, * and that 

there has been an acoeptauce on the 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 show an intention on the part of the 

owner of the land to dedicate it to the 

public e Oswald v. Grenet, 22 Tex. 94; 

Preston v. City of Navasota, 34 Tex. 684; 

City of Corslcana v. Anderson (TexXlv. 

App.) 78 S.X. 261; Elliott on Roads dc 

Streets, Sg 160, 161. Unlike an implied 

dedication, which as ve have seen, operates by way of es~oppel ln pals rather 

than by grant, a right by prescription 

rests upon the presumption that the owner of the land has granted the easement, 

and that the grant has been lost. City 

of Austin v. Hall. 93 Tex. 591, 57 S.Y. 

563; Saunders v. Simpson (Tenn.Sup.) 37 

S.W. 195. To sustain this claim it is 

not neaessary to show intent on the part 

of the owner of the land to set apart the 

road to the use of the public, and the 

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 au adverse ‘claim of right’ for the full prescriptive period. . . . The public’s 

right of prescrlptlon to a highway is not 

dependent upon the 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 arid In the manuer prescrlbed by the rule8 of lav to which we have 

adverted. Acts done by the munlclpal authorities of the county In reoognltion of 

the road in question as a public hi 

vould doubtless be facts or f 

huay 

circmm ances 

evidenci 

p41144~s 2 

the aCCOpbtnC8 of it under apheory of dedication, but the 

absence of such acts vould not prevent the 

acquisition of the right on the part of the 

public to use the road by preecriptlon. Public use i.wthe mamer stated and for the 

necessary period of prescription establishes 

the public right as firmly as if It had been 

created by an express grant. Furthermore, 

a suit to establish a right to use a way 

claWed by prescription is in the nature of 

or analogous to a suit to recover land, 

based upon a title acquired by adverse possession under our statutes of llmitatlon, 

although the interest which may be acqtired by prescription is only an easement, and 

not en estate In fee; and, where the prescriptive period, as in this state, is not 

fixed by statute, we conclude the longest 

period of limitation In actions for land, 

which 1s 10 years, till,by analogy, apply. 

Hence we hold that 10 years is the 

of prescription rln this state, and -t 

erlod 

he 

court correctly so charged.' 

It was held in Philll~s v. T. dc P. Ry. 296 S.Y. 

877, 880 (Tex. Comm.App.1927) that "the ublic may by adverse use for the prescriptive period, &l.ch 1s ordlnarlly 10 years 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, 183 S V.26 685, 687 

(Tex.Civ.App.l944), it was held: 

"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 runs by vorklng it or Preparing it 

for public travel, thereby asserting a Clair 

. 
Hon. Roy L. Rlll, page 4 (V-1098) 

to it for the public in such manner that 

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. 

The testimony 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. He admitted in his testimony 

that there probably was a road or passagevay along the north line of Section 25 

ever since the Forrlster schoolhouse was 

erected, and stated that he put some of 

the section In cultivation in 1928. But 

whether any of the appellants had actual 

know14 

to the “& 

4 of the road or not, according 

estlmony it was laid out by the 

citizens of Terry County and worked or 

‘scraped out’ in 1924 by the county authorities and graded by them in 1927. 

Even If the appellant, J. B. Black, who 

represented the other appellants, did not 

have actual knowledge of the establishment of the road, he vas charged with such 

tiowledge because he undoubtedly would have 

ho!in about it if he had been present at 

the time and would have lmown of the public travel over it at any time 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 made any 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 vhen a 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 manner that the road is established for the benefit of the county and the public 

generally, the period of prescription begins to run. The 

period of prescription in this State is 10 years. Uhethor the Poad In question has been acquired by Runnels 

County by rescription is a fact question which this office canno ii answer. 
I 

.._ 

Hon. Roy L. Hill, page 5’ (V-1098) 

681 

SUMMARY 

A county may acqoire a public road by 

prescription, which Fn this 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 a manor 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. PRICE MRIRL 

County Affairs Mvlslon Attorney General 

Everett Hutchinson 

Executive Assistant 

Charles D. Mathews 

First Assistant 

JR:mf:mw 

B%5-ezcAv~ 

Assistant,