April 3, 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, a petition was filed 

with the court for the opening of a first class 

road under the provisions of Article 6705, R.C.S. 

Thereafter, on February 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 an eastward direction for one mile and then in a northsouth direction for three miles. The east-west 

portion of one mile was duly opened as was 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 an electrical 

distribution line was erected running north 

and south in what would have been the roadway 

had this last mile of road 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: Can the Court proceed under 

the original petition and order entered in 

1940 and open this one mile of roadway or 

has the Court lost its right therein, either 

by abandonment, estoppel, or otherwise, and 

If so, must condemnation proceedings be instituted?” 

The easement for a public road belongs to the State 

and Its people, and once an award has been ordered by the Commissioners Court to the owners of a tract 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, 70 Tex. 680, 8 S.W. 503. 

When the Commissioners Court has entered an orde-, 

opening a road and has made an award, the order so entered 

is a final judgment and is not subject to a collateral attack. 

Luck v. Welch, 243 S.W.2d 589 (Civ.App., n.r.e.). 

This becomes, then, a right vested In the people of 

the State to use the route, so laid out by the jury of view, 

for road purposes, and we are of the opinion that a seventeen 

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 by the public in a road 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 a part of a dedicated street because such 

part was not opened up or used for 13 years. City of Dallas 

V. Gibbs, 65 S.W. 81 (Civ.App. writ ref.). 

Non-use of a road closed by a fence for twenty years 

is an abandonment at law (Art. 6703a,v.c.S.); but it would seem 

that this has no application to an easement over which no road 

has ever existed. The public cannot abandon its inchoate right 

t,o a road in the same way It could abandon a road by non-use. 

It is our opinion that~ there has been no abandonment unless 
Honorable 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 of Gainesville, 267 S.W.2d 270 (Clv.App., n.r.e.). 

Perry 

SUMMARY 

Rights of the public to a road 

easement acquired by an order of the 

Commissioners Court have not been lost 

by seventeen years of non-use. Subsequent purchasers of tracts crossed by 

such easement took title subject to the 

rights of the public in such easement. 

These rights may now be exercised by 

opening up the road. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

Byf&mF 

Assistant 

APPROVED: 

OPINION COMMITTEE: 

H. Grady Chandler, Chairman 

J. C. Davis, Jr. 

William E. Allen 

John Ross Iennan 

REVIEWED FOR THE ATTORNEY 

GENERAL BY: 

Geo. P. Blackburn