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### THEATIMD NEY GENERAI. OF ?lrExAs

Mr. Alwin E. Pape OpinionNo. 

### C-315 CountyAttorney Guadalupe County Re: Whether Guadalupe County can Seguin,Texas accept the roads and public ways of Treasure IslandwithDear Mr. Pape: out furtherdedication.
You have requestedour opinion on thefollowing question:
‘Can Guadalupe County accept the roads and public ways of Treasure Islandwlthout further dedication from the present land owners on the island?”
The facts related Inyour letter on which this opinion Is based are: (1) Treasure Island Is a well developed and inhabited subdivisionin Guadalupe County,Texas, with hard surface streetswhich are used by anyonedesiring to visit or drive about the island and are de factopublic streetsby their use. (2) The developer,Richmond DevelopmentCompany, Inc. has duly filedplats of said subdivisions for record In the ~;~o;g~lerkts Office containingthe followingpertinent

: “The owner of the land shown on this plat and whose name is subscribedhereto, and in person or through a duly authorizedagent, acknowledged that this plat was made from an actual surveyand dedicates to the use of the public forever all streets,alleys,parks, watercourses,drains, easements and publicplaces thereon shown for the purposes and considerationstherein expressed.

. . .‘I @ceptlon not pertinent to this opinion omittedz 

### (3) We quote fromyour letter as follows: “The problem that seems to stand in the way is that the Treasure IslandHomes Association, Inc., charges and collects a tax for variouspurposes, and retains the vendor’s lien on the sold land for

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### 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 collectedbeing, among other things, for street improvementand maintenance:
'From Deed:
", .thepropertyherein conveyed is hereby subjected to an annualmaintenance tax and charge of a rate not to exceed 10mills per square foot for the purpose of creating a fund to be known as "MaintenanceFund" to be paid by granteeherein, their heirs and assigns, In conjuctionwith a like charge to be paid by the owners of other lots on saidTreasure Island to the Treasure IslandHomes AssIn., Inc. To secure the payment of suchmaintenance charge, a vendor's lien is hereby retained In favor of Treasure IslandHomes Ass'n., Inc. against the above describedproperty,premises, .andimprovements,and It shall be the same as If a vendor's lien was retained in favor of the grantorherein, and assigned by proper assignment to Treasure IslandHome Ass'n, Inc.without recourse on grantor In any manner for the payment of said indebtedness. Such annual charge may be adjusted fromyear to year by Treasure Island Homes, Inc., as the needs of the property may in i.tsjudgment require, but in no event shall such charge be raised above 10mills per square foot of area. Grantor herein agrees to pay its properproportion of said fund for the unsold land fully developed as saleable lots owned by It. Treasure IslandHomes AssIn, Inc., shall apply the total fundarising from said charge, so far as it may be sufficient,toward oavment of maintenance exoensea incurred for any or all of the followingpurposes: Lighting, improving andmaintaining streets,parks, parkways, esplanades, subsidizingbus service, collecting and disposing garbage, ashes, rubbish and the like, and employingpolicemen 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 IslandHomes Ass'n, Inc.

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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 beingunderstood that the judgment of Treasure IslandHomes Ass'n, Inc., in the expenditureof said funds shall be final so long as such judgment Is exercised in good faith.

. .ETC. e . . If I

. .Theabove shallbe effectiveuntil January 1,'1985, and automaticallyextended for ten years provided that the owners of the majority of the square feet area in Treasure Islandmay revoke suchmaintenance charge on either January 1, 1985 or at the end of successive

### ten year periods thereafter, by executing and acknowledgingan appropriate agreement or agreements in writing for suchpurpose 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 fiveyears preceding the expiration of any successiveten year period thereafter. Saidmaintenance charge shall be payable on the first day of January of eachyear in advance.

. o 0p11
A public highway may be establishedby the owner of the fee by setting it apart for public use, this method being called dedication. Heilbron v. St. Louis SouthwesternRallroad Co, of Texas, 113 S.W. b10 979 (Tex.Civ.App.1906). Public wavs that have been establishedby 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. PaducahTel. Co., 164 S.W. 50 (Tex.Clv.App.1914, affm. 212 S W 0

. 147)

0 The general rule‘that the dedicatormay impose such restrictions as he sees fit on making a dedication of his property is subject to the limitationthat the restrictionmay 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 sufficientto showunequivocal acts or declarationsof the proprietor,dedicating same to public use, and where others act on the faith of suchmanifested intention, the proprietor will be estopped to deny the dedication or to make any futureuse of the property inconsistentwith 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 elementarythat the dedicator cannot grant any interest greater than he owned but basedupon the assumption that Richmond Development Company, Inc., owned the fee title at the time the plat and above cited restrictionswere recorded, or at any time subsequently,and that the property owners either bought their lots from Richmond Development Company, Inc., or a suacessor in interestwhich appears to be Treasure IslandHomes 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., supraand Roaring SpringsTownsite Co. v. Paducah Tel. Co., supra. Article 6703 Vernon’s Civil Statutesprovides that: “The commissioners court shall order the laying out and opening of public roads when, necessary,. . .‘I Article 2351Vernon’s Civil Statutesprovides as follows: “Each commissionerscourt shall: I’** *
"6. 

### Exercise general control over all roads, highway*, ferriesand bridges in their counties.

. . .‘I The CbmmissionersCourtmay make and enforce all reasonable and necessary rules for the working and repairing of public roads. Art. 6741,V.C.S. The determinationof the necessity for the constructionand location of public hlghways by a county is left to the sound judgmentand discretion of the CommissionersCourt. 129 Tex. 264, 104 S.W.2d 4 (1937). Tarrant Countyv. Shannon,

Based upon the facts and assumptionsabove outlined, it is our opinion that Guadalupe County through its Commissioners Court can accept the roads and public ways of Treasure Island without furtherdedication.

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SUMMARY e---s-- Based upon the facts and assumptions set out above, GuadalupeCounty can accept the roads and public ways of Treasure Island without furtherdedication. Very trulyyours, 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

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