### April3, 1957

Honorable Harold Green County Attorney Lynn County Tahoka, Texas Opinion No. W-105 Re: Opinion as to authority of the Commlssloners Court to open a first class county road seventeen years after petition and order acquiring such road had been entered. Dear Mr. Green:

Your request for our opinion stated the following facts and asked the following question:

"In November, 1939, apetition was filed with the court for the opening of afirst class road under the provisions of Article 6705, R.C.S. Thereafter, onFebruary 12, 1940, the Commlssioners Court duly entered an order declaring that said road be opened and awarded damages In accordance with the report of the jury of view. 'The road as ordered open ran in aneastward direction for one mile and then in anorthsouth direction for three miles. The east-west portion of one mile was duly opened aswas two miles of the north-south portion, and this portion of the roadway. has been used and maintained since the opening thereof. The last one mile of the road as petitioned for was never opened and the fence that ran across the same is still there. "Approximately ten years ago anelectrical distribution line was erected running north and south in what would have been the roadway had this last mile ofroad been opened. This distribution line is still In place and in use..’

Honorable Harold Green, page 2(WW-105)

“The Commissioners Court would now like to open the laat mile of said road, but do not want to condemn the utility company nor the property owners along this one mile stretch.“QUESTION: Canthe Court proceed under the original petition and order entered in 1940 and open this one mile ofroadway or has the Court lost its right therein, either by abandonment, estoppel, or otherwise, and If so, must condemnation proceedings be instituted?” Theeasement for apublic road belongs to the State and Its people, and once an award has been ordered by the Commissioners Court to the owners of atract or tracts of land over which the road is to pass, any subsequent purchaser takes subject to the easement thereby created. Wooldridge v. Eastland Counte, 70Tex. 680, 8S.W. 503.

Whenthe Commissioners Court has entered anorde-, opening aroad and has made an award, the order soentered is afinal judgment and is not subject to acollateral attack. Luck v. Welch, 243 S.W.2d 589 (Civ.App., n.r.e.).

This becomes, then, aright vested In the people of the State to use the route, so laid out by the jury of view, for road purposes, andweare of the opinion that aseventeen year delay in putting the land to the use for which it was acquired cannot deprive the people of their rights in the easement. Rights acquired bythe public in aroad easement are not lost by failure of the public to travel the full width of the road. Nonken v. Bexar County 221 S.W.2d 370 (CiV.App., n.r.e.1; and It has also been hel;f that the public did not lose its right in apart of adedicated street because such part was not opened upor used for 13years. City ofDallas V. Gibbs, 65S.W. 81 (Civ.App. writ ref.).

Non-use of aroad closed by afence for twenty years is an abandonment at law (Art. 6703a,v.c.S.); but it would seem that this has noapplication to aneasement over which noroad has ever existed. The public cannot abandon its inchoate right t,oaroad in the same way It could abandon aroad bynon-use. It is our opinion that~ there has been no abandonment unlessHonorable Harold Green, page 3(WW-105)

there are other circumstances also present, besides non-use, which would prove intent to abandon this easement right. v. City ofGainesville, 267 S.W.2d 270 (Clv.App., n.r.e.). Perry

SUMMARY Rights of the public to aroad easement acquired byan order of the Commissioners Court have not been lost by seventeen years ofnon-use. Subsequent purchasers of tracts crossed by such easement took title subject to the rights of the public in such easement. These rights maynowbe exercised by opening upthe road. Very truly yours, WILLWILSON Attorney General ofTexas

Byf&mFAssistant APPROVED: OPINIONCOMMITTEE:

H.Grady Chandler, Chairman J. C.Davis, Jr. William E. Allen John Ross Iennan REVIEWEDFORTHEATTORNEY GENERALBY: Geo. P. Blackburn