. -- 

THEATIMD NEY GENERAI. 

OF ?lrExAs 

Mr. Alwin E. Pape Opinion No. C-315 

County Attorney 

Guadalupe County Re: Whether Guadalupe County can 

Seguin, Texas accept the roads and public 

ways of Treasure Island withDear Mr. Pape: out further dedication. 

You have requested our opinion on the following question: 

‘Can Guadalupe County accept the roads and 

public ways of Treasure Island wlthout further 

dedication from the present land owners on the 

island?” 

The facts related In your letter on which this opinion 

Is based are: 

(1) Treasure Island Is a well developed and inhabited 

subdivision in Guadalupe County, Texas, with hard surface 

streets which are used by anyone desiring to visit or drive 

about the island and are de facto public streets by their use. 

(2) The developer, Richmond Development Company, Inc. 

has duly filed plats of said subdivisions for record In the 

~;~o;g~lerkts Office containing the following pertinent 

: 

“The owner of the land shown on this plat 

and whose name is subscribed hereto, and in person 

or through a duly authorized agent, acknowledged 

that this plat was made from an actual survey and 

dedicates to the use of the public forever all 

streets, alleys, parks, watercourses, drains, easements and public places thereon shown for the purposes and considerations therein expressed. . . .‘I 

@ceptlon not pertinent to this opinion omittedz 

(3) We quote from your letter as follows: 

“The problem that seems to stand in the way 

is that the Treasure Island Homes Association, Inc., 

charges and collects a tax for various purposes, 

and retains the vendor’s lien on the sold land for 

-1507- 
Mr. Alwln E. Pape, page 2 (C-315) 

its collection, payable on January 1st of each 

year for a term of years, January lst, 1985, and 

which term may be extended, and the following is 

copied verbatim from one of the deeds, one of the 

purposes for which the tax is collected being, 

among other things, for street improvement and 

maintenance: 

'From Deed: 

" , .the property herein conveyed is hereby 

subjected to an annual maintenance tax and 

charge of a rate not to exceed 10 mills per 

square foot for the purpose of creating a fund 

to be known as "Maintenance Fund" to be paid 

by grantee herein, their heirs and assigns, 

In conjuction with a like charge to be paid 

by the owners of other lots on said Treasure 

Island to the Treasure Island Homes AssIn., 

Inc. To secure the payment of such maintenance 

charge, a vendor's lien is hereby retained In 

favor of Treasure Island Homes Ass'n., Inc. 

against the above described property, premises, 

.and improvements, and It shall be the same as 

If a vendor's lien was retained in favor of the 

grantor herein, and assigned by proper assignment to Treasure Island Home Ass'n, Inc. without 

recourse on grantor In any manner for the payment of said indebtedness. Such annual charge 

may be adjusted from year to year by Treasure 

Island Homes, Inc., as the needs of the property 

may in i.ts judgment require, but in no event 

shall such charge be raised above 10 mills per 

square foot of area. Grantor herein agrees to 

pay its proper proportion of said fund for the 

unsold land fully developed as saleable lots 

owned by It. Treasure Island Homes AssIn, Inc., 

shall apply the total fund arising from said 

charge, so far as it may be sufficient, toward 

oavment of maintenance exoensea incurred for 

any or all of the following purposes: Lighting, 

improving and maintaining streets, parks, parkways, esplanades, subsidizing bus service, collecting and disposing garbage, ashes, rubbish and the 

like, and employing policemen and watchmen, caring 

for vacant lots, the owning and operating of water 

system, the owning and operating of a landing 

strip for aeroplanes serving the island, ana aolng 

any other thing necessary~ or desirable in the 

opinion of the Treasure Island Homes Ass'n, Inc. 

-1508- 
Mr. Alwin E. Pape, page 3 (C-315) 

to keep the property neat and In good order, or 

which it considers of general benefit to the owners 

or occupants of the addition, it being understood 

that the judgment of Treasure Island Homes Ass'n, 

Inc., in the expenditure of said funds shall be 

final so long as such judgment Is exercised in 

good faith. . .ETC. e . . 

If I . .The above shall be effective until January 

1,'1985, and automatically extended for ten years 

provided that the owners of the majority of the 

square feet area in Treasure Island may revoke 

such maintenance charge on either January 1, 1985 

or at the end of successive ten year periods thereafter, by executing and acknowledging an appropriate 

agreement or agreements in writing for such purpose 

and filing the same for record in the office of 

the County Clerk of Guadalupe County, Texas, at 

any time prior to January lst, 1980, or at any 

time prior to five years preceding the expiration 

of any successive ten year period thereafter. 

Said maintenance charge shall be payable on the 

first day of January of each year in advance. . o 0p11 

A public highway may be established by the owner of the 

fee by setting it apart for public use, this method being 

called dedication. Heilbron v. St. Louis Southwestern Rallroad Co, of Texas, 113 S.W. b10 979 (Tex.Civ.App. 1906). 

Public wavs that have been established by dedication are as 

much public highways and are as much subject to public use 

as if the land over which they run had been condemned and 

paid for. Roaring Springs Townsite Co. v. Paducah Tel. Co., 

164 S.W. 50 (Tex.Clv.App. 1914, affm. 212 S 0 W . 147) 0 The 

general rule‘that the dedicator may impose such restrictions 

as he sees fit on making a dedication of his property is subject to the limitation that the restriction may not be repugnant to the dedication or aaainst Dublic DO~ICTT and if such 

a-restriction is attempted it shall be void. Roaring Springs 

Townsite Co. v. Paducah Tel. Co., 109 Tex. 452, 

(1919). 

As to acceptance of this dedication our courts recognize 

the doctrine that a dedication of land to public use need not 

be shown by deed, nor by public use for any particular length 

of time, it being sufficient to show unequivocal acts or declarations of the proprietor, dedicating same to public use, 

and where others act on the faith of such manifested intention, 

the proprietor will be estopped to deny the dedication or to 

make any future use of the property inconsistent with any purpose for which the land was dedicated. Tribble v. Dallas Ry. 
Mr. Alwln E. Pape, Page 4 (C-315) 

and Terminal Co., 13 S.W.2d 933 (Tex.Civ.App. 1929, error 

ref.). 

It is elementary that the dedicator cannot grant any 

interest greater than he owned but based upon the assumption 

that Richmond Development Company, Inc., owned the fee title 

at the time the plat and above cited restrictions were recorded, or at any time subsequently, and that the property 

owners either bought their lots from Richmond Development 

Company, Inc., or a suacessor in interest which appears to 

be Treasure Island Homes Association, Inc., the dedication 

of the roads as public and the acceptance of the public by 

purchase of the lots by reference to the plat and use of the 

roads is adequate to impress the roads with a public easement. 

The maintenance charge which is a provision of the deed 

to private property adjoining these roads can have no effect 

upon the public easement in the roads. Trlbble v. Dallas Ry. 

and Terminal Co., supra and Roaring Springs Townsite Co. v. 

Paducah Tel. Co., supra. 

Article 6703 Vernon’s Civil Statutes provides that: 

“The commissioners court shall order the 

laying out and opening of public roads 

when, necessary,. . .‘I 

Article 2351 Vernon’s Civil Statutes provides as follows: 

“Each commissioners court shall: 

I’* * * 

"6. Exercise general control over all 

roads, highway*, ferries and bridges in 

their counties. . . .‘I 

The Cbmmissioners Court may make and enforce all reasonable and necessary rules for the working and repairing of 

public roads. Art. 6741, V.C.S. The determination of the 

necessity for the construction and location of public hlghways by a county is left to the sound judgment and discretion of the Commissioners Court. 

129 Tex. 264, 104 S.W.2d 4 (1937). 

Tarrant County v. Shannon, 

Based upon the facts and assumptions above outlined, it 

is our opinion that Guadalupe County through its Commissioners 

Court can accept the roads and public ways of Treasure Island 

without further dedication. 

-1510- 
Mr. Alwin E. Pape, Page 5 (c-315) 

e---s-- SUMMARY 

Based upon the facts and assumptions 

set out above, Guadalupe County can accept 

the roads and public ways of Treasure Island without further dedication. 

Very truly yours, 

WAGGONER CARR 

Attorney General of Texas 

WRR:dj 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Milton Richardson 

J. Arthur Sandlin 

Grady Chandler 

Gordon Houser 

APPROVED FOR THE ATTORNEY GENERAL 

By: Roger Tyler 

-1511-