Land Use - Ranch Road or County Road?

Land Use Lawyer Austin Texas

Jan 6, 2013 — by Jeff Mundy
Tags: Land Use

A dirt road known as Mills Road runs through Osoba Ranch. On June 7, 2005, the Commissioners Court of Brewster County, Texas notified Appellants that it had designated Mills Road as a county road on its county road map. Appellants were also notified that they had two years from June 7, 2005, to file suit and contest the County's road designation.

After a bench trial, the trial court determined that Mills Road was a Brewster County road pursuant to Chapter 258 of the Texas Transportation Code, impliedly dedicated to public use, with a width of thirty feet. TEX. TRANSP. CODE ANN. §§ 258.001-258.007. The trial court ordered Appellants to pay the County $27,143 in attorney's fees and awarded conditional attorney's fees on appeal. No findings of fact or conclusions of law were requested. This appeal followed.

 

Dedication is the act of appropriating private land to the public for any general or public use. Baker v. Peace, 172 S.W.3d 82, 87 (Tex. App. -- El Paso 2005, pet denied). Under common law, public roadways can be created by either express or implied dedication.*fn1Jezek v. City of Midland, 605 S.W.2d 544, 548-49 (Tex. 1980); O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 882--83 (1960). Whether there has been a public dedication of property is a question of fact. Viscardi v. Pajestka, 576 S.W.2d 16, 17 (Tex. 1978). If an implied dedication of a public roadway occurred with a prior owner, a subsequent purchase of the property will not affect the dedication. Baker, 172 S.W.3d at 87.

The elements of an implied dedication are: (1) the acts of the landowner induced the belief that he intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and acceptance of the dedication. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Generally, in order to establish donative intent, more than a landowner's omission or failure to act or acquiesce must be shown. Baker, 172 S.W.3d at 88. Such evidence may include allowing public authorities to grade, repair, improve, or fence off the roadway from the property. Id.However, evidence of a long and continued use of the disputed road by the public raises a presumption of dedication by the owner when the origin of the public use and land ownership at the time the public use began are "shrouded in obscurity" and no evidence showing the landowner's intent in allowing the initial public use exists. Graff v. Whittle, 947 S.W.2d 629, 637 (Tex. App. -- Texarkana 1997, writ denied); see also O'Connor, 339 S.W.2d at 882.

The County maintains that Mills Road was impliedly dedicated to the public. The County argues that undisputed evidence of long and continued use of Mills Road by the public raises a presumption of dedication by the owner as the origin of public use and the ownership of the land at the time the public use originated cannot be shown due to the lapse of time. Because an implied dedication results in "the appropriation of private property for public use without any compensation to the landowner," the County bears a heavy burden to establish an implied dedication. Van Dam, 307 S.W.3d at 340 (citing County of Real v. Hafley, 873 S.W.2d 725, 728 (Tex. App. San Antonio 1994, writ denied)). Therefore, we must determine whether the County established that the origin of Mills Road was "shrouded in obscurity" and that from that time, the roadway was subject to long and continuous use by the public.

The record before us contains testimony of several witnesses who were familiar with Mills Road and who testified that the road has always existed. However, none of the witnesses testified about the origin of the public use or the land ownership at the time the public use originated. Because the record does not contain any evidence of the origin of the public use and the ownership of the land at the time it originated cannot be shown, the origin of Mills Road is "shrouded in obscurity." See O'Connor, 339 S.W.2d at 883; Reed v. Wright, 155 S.W.3d 666, 672 (Tex. App. -- Texarkana 2005, pet. denied).

A presumption of dedication is established when there is a long and continuous public use of a road whose origin is shrouded in obscurity. Baker, 172 S.W.3d at 89-90; Graff, 947 S.W.2d at 637. The record shows that the County conclusively established a long and continuous public use of Mills Road. The testimony revealed than neither Appellants nor their predecessors in title tried to assert that the road was a private road. The testimony of several witnesses indicated that no one needed permission to travel along the road and that the road was open to the public and in use since at least the 1940's. Moreover, the evidence also shows that the County regularly maintained the road since at least the 1950's and has continued to do so since that time. In addition, Mills Road appears on historical maps as a county road and at least one plat dated 1941. Appellants failed to present any evidence rebutting the presumption that Mills Road was impliedly dedicated to public use.

When viewed in a light most favorable to the verdict, more than a scintilla of evidence exists that Mills Road was used by the public for a long and continuous time. City of Keller, 168 S.W.3d at 822. Because the origin of Mills Road is shrouded in obscurity and there is evidence of long and continued use of the road by the public there is a presumption that the landowner intended to dedicate Mills Road. Baker, 172 S.W.3d at 89-90; Graff, 947 S.W.2d at 637; Reed, 155 S.W.3d at 671-72.Therefore, we conclude that the evidence is legally sufficient to support the trial court's judgment that Mills Road was impliedly dedicated as a public road and we uphold the trial court's judgment that the road in question is a public road. Baker, 172 S.W.3d at 89-90.McCulloch v. Brewster County, (Tex. App. - 2012)

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