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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THOMAS HAYES, MARGARET HAYES , AND DUSTIN STIBBINS, ' APPEAL FROM THE 87 TH APPELLANTS

V. ' JUDICIAL DISTRICT CO URT OF

ANDERSON COUNTY AND ' ANDERSON COUNTY, TEXAS JACK HERRINGTON, APPELLEE S OPINION Thomas Hayes, Margaret Hayes
, and Dustin Stibbins (collectively “Appellants”) appeal the trial court’s judgment entered in favor of Appellees Anderson County (the “County”) and Jack Herrington declaring that A nderson County Road 3016 (“ CR 3016”) was impliedly dedicated as a public road with a width of fifty feet. Appellants raise four issues on appeal. We affirm in part and reverse and render in part.

B ACKGROUND Stibbins and Hayes purchased real property a long CR 3016 during the early to
mid

- 2000s. In 2007, there were times when public access to CR 3016 became impeded. In April 2008, Anderson County filed an original petition seeking a declaratory judgment
that CR 3016 was a public road that had been impl iedly dedicated in Anderson County. Stibbins, the Hayes es , and Jack Herrington were named as defendants in the suit

. Herrington aligned himself with the C ounty , a l leging that CR 3016 should be declared a public road. To the contrary, Stibbins and the Ha yeses maintained that the roadway was, in fact, an easement granted b y J.B. Herrington and his wife
, Emma Herrington
, to D.P. Berry in an instrument dated December 2, 1940. Following a bench trial, the trial court determined that CR 3016 was a public ro ad
with a width of fifty feet. No findings of fact or conclusions of law were requested. This appeal followed

.2 J URISDICTION OF T RIAL C OURT In their third issue, Appellants contend that the tri a l court exceeded its jurisdiction by determining that CR 3016 had been dedicated to the public. In support of th eir argument, Appellants cite s ection 251.051(a)(1) of the Texas Transportation Code , which states, in pertinent part, that “ the commissioner’s court of a county shall: (1) order that public roads be laid out, open ed , discontinued, closed, abandoned, vacated or altered ....”
T EX

. T RANSP

. C ODE A NN . § 251.051(a)(1) (Vernon 1999).
Prior to 1981
, Texas recognized dedication of public roads either by statute or by
common law. See Jezek v. City of Midland
, 605 S.W.2d 544, 548 (Tex. 1980). In 1981, the legislature abolished the common law doctrine of implied dedication as a mean s of establishing that a particular road traversing private property was a public road. Baker v.
Peace , 172 S.W.3d 82, 87 (Tex. A pp.

– El Paso 2005, pet. denied) (citing Act of May 31, 1981, 67th Leg., R.S., ch. 613, §§ 1, 2 & 4, 1981 T EX

. G EN

. L AWS 2412 (current version

at T EX

. T RANSP

. C ODE A NN . §§ 281.002, 281.003 (Vernon 1999) )

. Because there is no provision in the statute for ret roactive application, it can only be applied prospectively.
See id

. As such, the statutory abolishment of implied dedication of public roadways does not affect an implied dedication , which, as here, is alleged to have occurred before the
effective date o f the statute. See Scown v. Nei e , 225 S.W.3d 303, 309

– 10 (Tex. App.

– El Paso 2006, pet. denied). Common law dedications can be either expressed or implied. Jezek
, 605 S.W.2d at 544. An implied dedication occurs when there is some act or course of conduc t from which the law will imply an intent to dedicate the land. See id. at 548

– 49. A district court of this state has jurisdiction to determine whether there has been an implied dedication of a public road and its location. See Tabor v. Hogan
, 955 S.W.2 d 894, 8 97 (Tex. App.

– Amarillo 1997, no pet.) (trial court had jurisdiction to determine location of county road); see, e.g., County of Real v. Hafley , 873 S.W.2d 725, 725 (Tex. App.

– San Antonio 1994, writ denied) ( action seeking declaratory judgment that road was not public
road )

. Therefore, w e hold that the trial court had jurisdiction to enter a declaratory judgment based upon the legal theory of implied dedication

. Appellant’s third issue is
overruled.
E VIDENTIARY S UFFICIENCY - I MPLIED D EDICATION
In their first issue, Appellants argue that there was insufficient evidence to
establish that CR 3016 was implied ly dedicat ed for public use

.3

Standard of Review
Whe re, as in the instant case, findings of fact and conclusions of law are neither
filed nor requested following a bench trial, it is implied that the trial court made all findings necessary to support its judgment, provided that (1) the necessary findings are raised by the pleadings and supported by the evidence and (2) the decision can be

susta ined by any reasonable theory consistent with the evidence and applicable law. S ee Santa Fe Petroleum, L.L.C. v. Star Canyon Corp. , 156 S.W.3d 630, 636 (Tex. App.

– Tyler 2004, no pet.); see also T EX

. R. C IV

. P. 296, 299(a). We review de novo a trial

court ’ s conclusions of law, whether express or implied. Santa Fe Petroleum , 156
S.W.3d at 636. A conclusion of law will be set aside if it is erroneous as a matter of law.
Id. Moreover, w hen a report er’s record is brought forward, the trial court’s implied findings may be challenged by legal sufficiency and factual sufficiency issues the same as jury findings or a trial court’s findings of fact. See Alford v. Johnston
, 224 S.W.3d 291, 296 (Tex. App.

– El Paso 2005, pet. denied). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. See Worford v. Stamper
, 801 S.W.2d 108, 109 (Tex. 1990). When reviewing a challenge to the legal sufficiency of the evidence , we must determine “whether the evidence at trial w ould enable reasonable and fair minded people
to reach the verdict under review.” City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we must credit favorable evidence if a reasonable finder of fact could, and disrega rd contrary evidence unless a reasonable finder of fact
could not. Id. The finder of fact is the sole judge of the credibility of the witnesses and the weight to be assigned to their testimony. See Canal Ins. Co. v. Hopkins , 238 S.W.3d 549, 557 (Tex. App

. – Tyler 2007, pet. denied) (citing City of Keller , 168 S.W.3d at 819). The finder of fact is free to believe one witness and disbelieve another, and reviewing courts may not impose their own opinions to the contrary. Id. Accordingly, we must
assume that the finder of fact decided all credibility questions in favor of the findings if a reasonable person could do so. Id. If a reasonable finder of fact could have done so, we must assume that the finder of fact chose what testimony to disregard in a way th at favored the findings. See Canal , 238 S.W.3d at 557 (citing City of Keller , 168 S.W.3d at 820). When considering a challenge to the factual sufficiency of the evidence, we examine the entire record to determine whether a finding is clearly wrong and u njust. See4

Kinder Morgan N

. Tex. Pipeline, L.P. v. Justiss , 202 S.W.3d 427, 437 (Tex. App.

– Texarkana 2006, no pet.). We must consider and weigh all the evidence, not just that evidence which supports the verdict. See Mar. Overseas Corp. v. Ellis , 971 S. W.2d 402,
40 7 (Tex. 1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. ; Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). We are not a fact finder. See Justiss
, 202 S.W.3d at 437. Accordingly, we may not pass on the witnesses’ credibility or
substitute our judgment for that of the fact finder , even if the evidence would clearly support a different result. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003); Ellis , 971 S.W.2d at 407. If we find the evidence is factually
insufficient , we must clearly state why the finding is insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford
Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986). Governing Law Dedication is the act of appropriating private land to the public for any general or public use. Baker
, 172 S.W. 3 d at 87. Whether a road has been dedicated for public use is a ques tion of fact. Steel v. Wheeler
, 993 S.W.2d 376, 378 (Tex. App.

– Tyler 1999, pet. denied). The essential elements of implied dedication are (1) the acts of the land owner induced the belief that the land owner intended to dedicate the road to public use; ( 2) he was competent to do so; (3) the public relied on those acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. La s Vegas
Pecan & Cattle Co., Inc. v. Zavalla County
, 682 S.W.2d 254, 256 (Tex. 1984). Evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time.
Bak er , 172 S.W.3d at 88; see also O’Conn o r v. Gragg
, 339 S.W.2d 878, 883 (Tex. 1960) (“Where ownership of the land at the time of such origin is shrouded in obscurity, and no proof can be adduced to show the intention of the owner allowing the use, the law ra ises a presumption that the requisite intention and acts disclosing it were pres ent. ”)

. There must be some evidence of an additional factor that implies a donative intent when considered in light of the owner’s acq uie scence in the public’s use of the road way. Baker
, 172
S.W.3d at 88. Evidence of this additional factor can be permitting public authorities to grade, repair
, or otherwise improve the roadway. See i d.5

The Evidence Herrington, a proponent of CR 3016’s de dica tion as a public road, testifie d that he

grew up in the area where CR 3016 is now located. He rrington stated that , following his

return from military service in World War II
, the road was built at the prompting of R.J.
Goodman. Herrington further stated that he had measured the road a nd that it was thirty

five feet in width. Herrington also testified that the C ounty had maintained the road since
its construction. Sammy Overton, who grew up in the nearby Brushy Creek area, testified that he had worked for Anderson County for twenty

- fi ve years. Overton further testified that he
did not remember precisely when the road was constructed , but that it had been constructed during the period of time when Tom Campbell Elrod was the C ounty C ommissioner for the precinct. Overton stated that, in 1965, he went to work for the
C ounty under Elrod’s successor as P recinct C ommissioner, “Blue” Beard. Overton
further stated that he used road equipment to maintain the road weekly from 1965 until
1977. Overton testified that he also maintained the road when he went back to work for
the C ounty from 1990 to 2003. Overton also testified that George Rose, who had worked under Elrod, operated a road grader on the road prior to Overton’s employment by the
C ounty in 1965. Overton stated that the road was prev iously known as “Goodman Road” before being designated CR 3016.
Carl House has worked for the C ounty continuously since 1990 . House testified
that he has worked on CR 3016 throughout his tenure with the C ounty. House further
testified that during his time as a county employee, the C ounty has bl aded the road , put asphalt on it
, and built a bridge. House stated that throughout the entirety of his employment with the C ounty , the road ha s always been designated as CR 3016. Yet, House, who grew up nearby in Frankston , Texas , testified that he also had heard the road
referred to as “ Goodman Road. ”
John Caveness testified on Appellants’ behalf. He testified that he had lived in
the Frankston area for forty years and that he did not know that CR 3016 was a county road. Caveness further testified that he had done work in the area for a previous landowner along the road in 1993 and described the road as a “pig trail.” Caveness stated that he had used his equipment to clear the road enough so that he could ge t equipment in and out of the property where he was working. Caveness further stated that the road that
the C ounty used to work on in the area was actually another road
, which was now behind6

a locked gate on Herrington’s property.
Bob Whitehurst testif

ied that he had lived in the area since 1954 and that th e road
located behind a locked gate on Herrington’s property was , in fact, the road formerly
known as “ Goodman Road. ” Whitehurst further testified that this road had been open to public use. Whitehu rst stated that what is now CR 3016 did not exist when he was growing up in the area. Additionally, in their respective testimonies, Thomas and Margaret Hayes each express ed disbelief that CR 3016 was a public road when they purchased the ir property. Rat her, their respective testimon ies reflect that each considered it a private easement benefiting their property purchased in 2005. Dustin Stibbins testified that his parents purchased land along CR 3016 in 1995

. Stibbins further testified t hat he purcha sed the land from his mother after his father’s
death. Stibbins stated that he believed the road was only an easement owned by the Hayes es , which they allowed him to use. Analysis Based on the foregoing, we conclude that there was more than a scintilla of evidence to support the trial court’s implied finding that CR 3016 was impliedly
dedicated to the public prior to 1981 . Herrington’s testimony that the road was built at Goodman’s prompting as well as Herrington’s , Overton’s
, and House’s testimonies t hat the road had been continuously maintained by the county since the late 1940 s amounted

to legally sufficient evidence to support the trial court’s judgment

. We next consider Appellants’ contention that the evidence is factual ly
in sufficien t. We have examined the entirety of the record , and we have consider ed and weigh ed all of the evidence . Having done so, we have not determined that any evidence tending to contradict the evidence supporting the trial court’s findings, such as the testimony offered by Caveness, Whitehurst, the Hayeses
, or Stibbins, is of such character so as to cause us to conclude that the trial court’s judgment is clearly wrong and unjust. Accordingly, we hold that the evidence is factually sufficient to support the trial court’s judgment. Appellant s ’ first issue is overruled.

A DMISSION OF E VIDENCE
In their second issue, Appellants argue that the trial court erroneously admitted
into evidence the field notes prepared by County Surveyor Gene Russell. Appellants objected at tri al to exhibit 7
, which comprised Russell’s field notes pertaining to CR7

3016. Specifically, Appellants objected to exhibit 7 because the C ounty failed to disclose in pretrial discovery the existence of Russell’s field notes. 1
The C ounty responds that the same evidence comprising exhibit 7 was also contained in exhibit 8, which was a large plat showing CR 3016. The record indicates
that e xhibit 8 was admitted without objection. Any error in admitting evidence is cured
when the same evidence comes in else where without objection. Schwartz v. Forest Pharms., Inc,. 127 S.W.3d 118, 124 (Tex. App.

– Houston [1st Dist.] 2003, pet. denied). Here, because Appellants failed to object to the same evidence when it was offered as part of exhibit 8, we hold that they w aived the trial court’s error, if any, in its admission
of exhibit 7

. Id. Appellants’ second issue is overruled.

D ETERMINATION OF W IDTH OF CR 3016 In their fourth issue, Appellants contend that the trial court improperly determined
that the width of C R 3016 was fifty feet . The C ounty responds that the testimony at trial supported that a fifty foot road was necessary so that the road could be safely maintained. Kenneth Dickson, C ounty C ommissioner for P recinct 3 of Anderson County,
Texas , testified th at the minimum width of roads in Anderson County was set at fifty feet.
Dickson further testified that the rational e for this minimum width was to allow the operator s of the C ounty ’s maintenance equipment to maneuver off the roads so that cars could pass by while maintenance was underway

. Dickson stated that if the roads were
less than fifty feet wide , the C ounty would have to disallow passage on a road in order to
clean the ditches. Herrington testified that the road used to be thirty

- five feet wide. H e rrington
further stated that he had actually physically measured the width of the road. There was no other testimony in the record setting forth the actual width of the road. We are bound by the testimony in the record concerning the width of the road w hen it was dedicated. The only evidence of the road’s width when it became public by an implied dedication
was the thirty

- five f

oot width to which Herrington testified . When there is no evidence to support a vital fact in the judgment, we must reverse th at portion of the judgment. See City of Keller
, 168 S.W.3d at 810. As such, we hold that the trial court erred in its finding that the width of CR 3016 was fifty feet. Appellants’ fourth issue is sustained.

1 See T EX

. R. C IV

. P. 193.5, 193.6.8 D ISPOSITION Having sustained Appellants’ fo urth issue
, we reverse and render judgment that
the width of CR 3016 is thirty

- five feet . T he remainder of the trial court’s judgment is affirmed

. All pending motions are overruled as moot.

JAMES T. WORTHEN Chief Justice

Opinion delivered May 28 , 2010. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)