2006 TEXAS LAND TITLE INSTITUTE PUBLIC ROADS AND PRIVATE ... · 2006 TEXAS LAND TITLE INSTITUTE PUBLIC ROADS AND PRIVATE ROAD EASEMENTS Frank Oliver Oliver & Oliver, P.C. 100 Congress

2006 TEXAS LAND TITLE INSTITUTE

PUBLIC ROADS AND PRIVATE ROAD EASEMENTS

Frank Oliver

Oliver & Oliver, P.C. 100 Congress Avenue, Suite 2100

Austin, Texas 78701 (512) 370-4050

Fax (512) 370-4051 [email protected]

2006 Texas Land Title Institute – Roads and Easements

RESUME OF FRANK OLIVER

Frank Oliver practices law in Austin, Texas, with the firm of Oliver & Oliver, P.C. He is a 1972 graduate of the University of Texas and a 1975 honors graduate of the University of Texas Law School where he was an editor of the Texas Law Review. Following a federal judicial clerkship, he has engaged in the private practice of law, principally in the area of real estate litigation and transactions. He has represented title insurance companies, agents, and insureds in the defense of title claims for over twenty-five years. He is the author of Garrett and McDaniel, DTPA Liability for Issuance of a Title Insurance Commitment, published in 26 Texas Tech Law Review 857 (1995). He is an Associate Member of the Texas Land Title Association and has served as a member of the Defense Counsel Committee and the Legal Issues Committee. He is a Life Fellow of the Texas Bar Foundation. He is listed in Best Lawyers in America and is a Texas Monthly Super Lawyer in Real Estate.

PUBLIC ROADS AND PRIVATE ROAD EASEMENTS

Frank Oliver Oliver & Oliver, P.C.

I. PUBLIC ROADS.

A. Statutory Public Roads and Common Law Public Roads.

1. “All roads which have been laid out and established by authority of the commissioners’ court are public roads. . . A road not originally established under the statute may become public by long-continued use and adoption as such by the county commissioners with the assent of the owner or by prescription. A road may also become public, in the sense that the public have the right to use it, by dedication.” Worthington v. Wade, 17 S.W. 520, 521 (Tex. 1891).

2. Prior to the adoption of statutory procedure for the establishment of public roads

(e.g., condemnation), dedication and prescription were the methods known to the common law to establish a public road. These methods of establishing a public road have not been abolished by the statutes that provide for the establishment of roads. Brown v. Kelly, 212 S.W.2d 834 (Tex. Civ. App. – Fort Worth 1948, no writ).

B. Definition and Characteristics of Public Road.

1. Texas Transportation Code § 251.002: “A public road or highway that has been

laid out and established according to law and that has not been discontinued is a public road.” This has been described as the definition of a statutory public road. Stein v. Killough, 53 S.W.3d 36, 43 (Tex. App. – San Antonio 2001, no pet.)

2. “The purpose of a public road, particularly one of local character, is to provide

access to property abutting upon it, as well as a thoroughfare between distant points.” Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex. App. – Tyler 1999, pet. denied); Compton v. Thacker, 474 S.W.2d 570, 574 (Tex. Civ. App. – Dallas 1971, writ ref'd n.r.e.).

3. “A road’s characterization as public does not depend upon its length, nor upon

the places to which it leads, nor upon the persons who actually travel upon it. . . . . So long as it is free and open to all who have occasion to use it, it is a public road.” Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006)(Mem. Op.)

2006 Texas Land Title Institute – Roads and Easements 1

4. "Proof that a road is only slightly traveled by the public does not prove the road is not public. If it is free and open to all who have occasion to use it, it is a public road." Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex. Civ. App. – Waco 1981, writ ref'd n.r.e.).

5. A road open to the public is a public road, although one person is most

benefited by it. Galveston, H. & S.A. Ry. Co. v. Baudat, 45 S.W. 939 (Tex. Civ. App. 1898).

6. The status of a road as a public road is a question of fact. Linder v. Hill, 691

S.W.2d 590, 591 (Tex. 1985); Gutierrez v. County of Zapata, 951 S.W.2d 831, 837 Tex. App. – San Antonio 1997, no writ).

C. Dedication of Public Road.

1. Elements of Dedication. Generally stated, for there to be an effective dedication

of a public road, the owner of the property in order to serve a public purpose must make an express or implied offer of dedication to the public, which must be accepted.

a. “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 is sufficient if the record shows unequivocal acts or declarations of the landowner, dedicating same to public use, and where others act on the faith of such dedication, the landowner 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.” Owens v. Hockett, 251 S.W.2d 957, 958 (Tex. 1952).

b. “Common law dedications can be either express or implied. In both

instances, there must be an appropriation of land by the owner to public uses, in one case by express manifestation of such purpose and in the other, by some act or course of conduct from which the law will imply such an intent.” Jezek v. City of Midland, 605 S.W.2d 544, 548-9 (Tex. 1980).

c. “There are four distinct elements to establish a successful dedication,

whether express or implied: (1) the person who makes the dedication must have the ability to do so, i.e., the landowner must have fee simple title before he can dedicate his property; (2) there must be a public purpose served by the dedication; (3) the person must make either an express or implied offer; and (4) the must be an acceptance of that offer.” Kunefke v. Calhoun County, 2006 WL 1553261 (Tex. App. – Corpus Christi 2006, no pet.)(Mem. Op.); Moody v. White, 593 S.W.2d 372, 378 (Tex. Civ. App. – Corpus Christi 1979, no writ).

2006 Texas Land Title Institute – Public Roads and Private Road Easements 2

2. Express Dedication. a. Generally, an express dedication is accomplished by a deed or other

written instrument, such as a plat. Gutierrez v. County of Zapata, 951 S.W.2d 831, 837 (Tex. App. – San Antonio 1997, no writ).

b. Even in the case of an express dedication, acceptance of the dedication

must still be shown as a separate element. Kunefke v. Calhoun County, 2006 WL 1553261 (Tex. App. – Corpus Christi 2006, no pet.)(Mem. Op.).

3. Implied Dedication.

a. Elements: The elements of implied dedication are (1) the acts of the

landowner induced the belief that the landowner intended to dedicate the road to public use, (2) the landowner 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).

b. Implied dedication is sometimes referred to as “common law

dedication.” Barstow v. State, 742 S.W.2d 495, 504 (Tex. App. – Austin 1987, writ denied).

c. Intent to Dedicate to Public Use.

i. The manifestation of intent to dedicate the road to public use

“must be something more than an omission, failure to act, or acquiescence on the part of the owner.” Betts v. Reed. 165 S.W.3d 862, 868 (Tex. App. – Texarkana 2005, no pet.); Greenway Parks Home Owners Ass’n v. City of Dallas, 312 S.W.2d 235, 241 (Tex. 1958).

ii. Direct evidence of the landowner’s dedicatory intent is not

required. Supak v. Zboril, 56 S.W.3d 785, 790 (Tex. App. – Houston [14 Dist.] 2001, no pet.); Owens v. Hockett, 251 S.W.2d 957, 958-9 (Tex. 1952).

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iii. “In certain instances, when coupled with other facts, public use

will raise an inference of the owner's intent to dedicate; however, evidence of public use without more is not sufficient to indicate such a clear and unequivocal act on the owner's part to establish his intent to dedicate thus estopping him from denying the fact of public dedication.” Lee v. Uvalde County, 616 S.W.2d 367, 372 (Tex. Civ. App. – Tyler 1981, no writ); Maddox v. Maxwell, 369 S.W.2d 343, 347 (Tex.1963).


iv. “As a general rule, the owner's donative intention may not be

inferred from evidence that shows only that the public used the roadway for a long period of time without protest or dispute by the owner.” Barstow v. State, 742 S.W.2d 495, 506 (Tex. App. – Austin 1987, writ denied), citing Greenway Parks Home Owner's Ass'n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235 (Tex.1958).

v. The actual subjective intent of the landowner is not relevant;

rather, “the acts of the landowner are examined to determine whether he induced a belief that he intended to dedicate the road.” County of Real v. Hafley, 873 S.W.2d 725, 729 (Tex. App. – San Antonio 1994, writ denied). See also Owens v. Hockett, 251 S.W.2d 957, 958 (Tex. 1952).

vi. Evidence of dedicatory intent may include:

a. Permitting public authorities to build, grade, repair, or

improve the road; Brown v. Kelly, 212 S.W.2d 834, 838 (Tex. Civ. App. – Fort Worth 1948, no writ); Barstow v. State, 742 S.W.2d 495, 506 (Tex. App. – Austin 1987, writ denied);

b. Using a plat showing the road as the access to the parcels

being sold; Oswald v. Grenet, 22 Tex. 94 (1858); State v. Clark, 336 S.W.2d 612 (Tex. 1960); City of Tyler v. Smith County, 246 S.W.2d 601 (Tex. 1952); Adams v. Rowles, 228 S.W.2d 849 (Tex. 1950).

c. Building facilities for general public use serviced by the

disputed road; Lindner v. Hill, 691 S.W.2d 590 (Tex.1985);

d. Express representation by the landowner to a purchaser

that the road is reserved for public use; Gilder v. City of Brenham, 67 Tex. 345, 3 S.W. 309 (1887);

e. Fencing off the roadway from the remainder of the land;

Owens v. Hockett, 251 S.W.2d 957 (Tex. 1952); Malone v. Whitfield, 621 S.W.2d 192, 195 (Tex. Civ. App. – Waco 1981, writ ref’d n.r.e.);

f. Reducing the purchase price to reflect the area within the

road; Parisa v. City of Dallas, 18 S.W. 568 (Tex. 1892);


g. Not locking a gate across the road; County of Real v. Hafley, 873 S.W.2d 725, 729 (Tex. App. – San Antonio 1994, writ denied); or

h. Accepting a deed with an easement provision allowing

ingress and egress; County of Real v. Hafley, 873 S.W.2d 725, 729 (Tex. App. – San Antonio 1994, writ denied).

d. Presumption of Dedication in Certain Cases. The long and continuous

use of the road by the pubic raises a presumption of dedicatory intent. Betts v. Reed. 165 S.W.3d 862, 869 (Tex. App. – Texarkana 2005, no pet.).

i. When the origin of the road cannot be determined, evidence of

long and continued use by the public raises a presumption that the landowner intended to dedicate the road. O’Connor v. Gragg, 339 S.W.2d 878, 882 (Tex. 1960)(“… a presumption of acquiescence is raised when the origin of the user by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use.”)

ii. A number of courts of appeal have interpreted O’Connor v.

Gragg to hold that, when the origins of the road cannot be shown, long and continued use by the public raises a presumption of dedication (i.e., a presumption that all four required elements of implied dedication are met), and not just a presumption of intent to dedicate. Reed v. Wright, 155 S.W.3d 666 (Tex. App. – Texarkana 2005, pet. denied); Graff v. Whittle, 947 S.W.2d 629, 637 (Tex. App. – Texarkana 1997, writ denied); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App. – Houston [1st Dist.] 1992, writ denied); Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006, no pet. h.)(Mem. Op.)

iii. The Fourteenth Court of Appeals has limited O’Connor v. Gragg

to a presumption of dedicatory intent. Supak v. Zboril, 56 S.W.3d 785, 790 (Tex. App. – Houston [14th Dist.] 2001, no pet.). This would require that the proponent of the public road separately establish the other elements of dedication.

iv. Long and Continued Use. In one case, public use for

approximately 25 years was held sufficient to be long and continuous use. Reed v. Wright, 155 S.W.3d 666, 673-4 (Tex. App. – Texarkana 2005, pet. denied). In another, 20 years of use on one portion of the road was sufficient to invoke the presumption. Compton v. Thacker, 474 S.W.2d 570 (Tex. Civ.


App. – Dallas 1971, writ ref'd n.r.e.). Typically, the use giving rise to the presumption of dedication is for longer periods of time. O’Connor v. Gragg, 339 S.W.2d 878, 882 (Tex. 1960)(approximately 70 years); Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 533 (Tex. App. – Fort Worth 1983, no writ)(at least 50 years); Steel v. Wheeler, 993 S.W.2d 376, 379 (Tex. App. – Tyler 1999, pet. denied)(approximately 57 years); Graff v. Whittle, 947 S.W.2d 629, 637 (Tex. App. – Texarkana 1997, writ denied)(approximately 40 years); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App. – Houston [1st Dist.] 1992, writ denied)(approximately 60 years); Love v. Olguin, 572 S.W.2d 17, 22 (Tex. Civ. App. – El Paso 1978, writ ref’d n.r.e.)(approximately 45 years); Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006, no pet. h.)(Mem. Op.)(65 years).

v. Effect of Presumption. A presumption of dedication or intent to

dedicate does not shift the burden of proof from the proponent of the public road, but it does shift the burden of producing or going forward with the evidence to the opponent of the public road. Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006, no pet. h.)(Mem. Op.).

4. Requirement That Landowner Be Competent to Make Dedication.

a. The requirement that the landowner be competent to make the

dedication means that the landowner held fee simple title to the land subject to the dedication. Gutierrez v. County of Zapata, 951 S.W.2d 831, 839 n. 10 (Tex. App. – San Antonio 1997, no writ).

5. Public Reliance on the Dedication.

a. Long, continued, and unquestioned use of a road by the public will

support a finding that the public relied upon the dedication. Supak v. Zboril, 56 S.W.3d 785, 791 (Tex. App. – Houston [14th Dist.] 2001, no pet.); Graff v. Whittle, 947 S.W.2d 629, 638 (Tex. App. – Texarkana 1997, writ denied).

6. Acceptance of the Dedication.

a. Acceptance of the road does not require a formal or express acceptance,

and acceptance of the road can be implied. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978).

b. General and customary use by the public can be used to show

acceptance of the dedication. Bush v. Fayette County, 2006 WL 952413


(Tex. App. – Austin 2006, no pet. h.)(Mem. Op.); Gutierrez v. County of Zapata, 951 S.W.2d 831, 839 (Tex. App. – San Antonio 1997, no writ).

c. Use by the public or local authorities will establish acceptance. The use

need not be for any specific length of time, and a short period of use can be sufficient. It is only required that the use continue for a period of time sufficient to support an inference that the public intended to accept permanently the offer of public use. Schwertner v. Jones, 456 S.W.2d 956, 958 (Tex. Civ. App. – Austin 1970, no writ).

d. It does not matter whether a county expressly accepts an offer of

dedication, or the public accepts the dedication on the county's behalf. Kunefke v. Calhoun County, 2006 WL 1553261 (Tex. App. – Corpus Christi 2006, no pet.)(Mem. Op.).

e. Depiction of the road on public maps or listing of the road on an official

list of county roads is evidence of acceptance of the dedication. Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006, no pet. h.)(Mem. Op.).

i. Conversely, the failure of the road to be shown on historical

county maps and plats was noted by one court of appeals in affirming a trial court’s judgment n.o.v. declaring a road to be private and not public. County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex. App. – San Antonio 1999, pet. denied).

f. The filing of a plat containing the dedication does not itself constitute

acceptance of the dedication. Langford v. Kraft, 498 S.W.2d 42, 49 (Tex. Civ. App. – Beaumont 1973, writ ref’d n.r.e.).

g. The dedication cannot be revoked by the landowner once it has been

accepted. Reed v. Wright, 155 S.W.3d 666, 673 n. 9 (Tex. App. – Texarkana 2005, pet. denied); Moody v. White, 593 S.W.2d 372, 378 (Tex. Civ. App. – Corpus Christi 1979, no writ).

7. Common Law Dedication Abolished in Certain Counties.

a. The common law doctrine of implied dedication was abolished in 1981

by the Texas Legislature for counties with a population of 50,000 or less, effective August 31, 1981. TEX. TRANSP. CODE § 281.003(b). See Act of May 31, 1981, 67th Leg., R.S., ch. 613, 1981 Tex. Gen. Laws 2412-13, amended by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1195-96.

b. Effective August 31, 1981, a county with a population of 50,000 or less

may acquire a public interest in a private road only by (1) purchase, (2)


condemnation, (3) dedication, or (4) a court's final judgment of adverse possession. TEX. TRANSP. CODE § 281.002.

i. For counties with a population of 50,000 or less, a road

dedication on and after August 31, 1981, must be an explicit voluntary grant of the use of a private road for public purposes and must communicated in writing to the commissioners court of the county in which the real property is located. An oral dedication or intent to dedicate by overt act is not sufficient to establish a public interest in a private road. TEX. TRANSP. CODE § 281.003.

ii. Effective August 31, 1981, for counties with a population of

50,000 or less, adverse possession is not established by the: (1) use of a private road by the public with the permission of the owner; or (2) maintenance with public funds of a private road in which a public interest is not recorded. TEX. TRANSP. CODE § 281.004.

iii. For counties with a population of 50,000 or less, after a public

interest in a private road is acquired under Chapter 281, the commissioners court shall record by resolution the interest in the records of the court. The resolution must state (1) the date on which the interest was acquired, and (2) the circumstance by which the interest was acquired. TEX. TRANSP. CODE § 281.005. A commissioners court may not assert a public interest in a private road acquired under Chapter 281 until the court (1) complies with Section 281.005, and (2) gives written notice to the owner of the road in person or by registered mail to the address of the owner shown on the most recent ad valorem tax roll for the county. TEX. TRANSP. CODE § 281.006.

a. A person asserting a right, title, or interest in a private

road in which a public interest is asserted under this chapter may file suit in a district court in the county in which the road is located not later than the second anniversary after the later of (1) the date that the resolution required by Section 281.005 is recorded, or (2) the date the notice required by Section 281.006 is given to the owner. TEX. TRANSP. CODE § 281.007.

c. The statute abolishing implied dedication for counties with a population

of 50,000 or less was not retroactive. Thus, an implied dedication may still be shown if it occurred prior to August 31, 1981. Bush v. Fayette County, 2006 WL 952413 (Tex. App. – Austin 2006, no pet. h.)(Mem. Op.).


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i. If an implied dedication occurred prior to August 31, 1981, then

a subsequent purchase of the property does not affect the dedication. County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex. App. – San Antonio 1999, pet. denied).

D. Public Road By Prescription.

1. To establish a public road by prescription, it must be shown that use by the general public was exclusive, hostile, adverse, open, uninterrupted, and continuous for a period of more than ten (10) years. Hudson v. Gaines, 501 S.W.2d 734, 738 (Tex. Civ. App. – Corpus Christi 1973, no writ).

2. In order to successfully claim an easement by prescription on behalf of the

public, the proponent of the prescriptive public easement must show: (1) possession of the land; (2) use or enjoyment of it; (3) an adverse or hostile claim; (4) an inclusive dominion over the area and appropriation of it for public use and benefit; and, (5) for more than the ten year statutory period. Moody v. White, 593 S.W.2d 372 (Tex. Civ. App. – Corpus Christi 1979, no writ).

3. “The permissive use of a roadway over the land of another contemporaneously

with the owner's use of the same roadway is not adverse.” O’Connor v. Gragg, 339 S.W.2d 878, 881 (Tex. 1960).

4. “The use of the road is permissive and not adverse, as a matter of law, if the

roadway is also used by the owner of the land along with those who claim an easement by prescription.” Hudson v. Gaines, 501 S.W.2d 734, 738 (Tex. Civ. App. – Corpus Christi, 1973, no writ); Gill v. Pringle, 224 S .W.2d 525 (Tex. Civ. App. – Waco 1949, writ ref'd).

a. The reasoning in earlier cases, such as Fowler v. Matthews, 204 S.W.2d

80, 84-5 (Tex. Civ. App. – Austin 1947, no writ), that joint use was not necessarily fatal to a claim of public road by prescription, has been explicitly rejected by later cases. E.g., County of Real v. Sutton, 6 S.W.3d 11, 14 (Tex. App. – San Antonio 1999, pet. denied). See Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979) (private contemporaneous use by owner renders use by others permissive).

5. “The prevailing rule is that where the claimant has shown an open, visible,

continuous, and unmolested use of land for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, so as to place upon the owner of the servient estate, in order to avoid the acquisition of an easement by prescription, the burden of rebutting this presumption by showing that the use was permissive.” Dortch v. Sherman County, 212 S.W.2d 1018 (Tex. Civ. App.—Amarillo 1948, no writ), quoting


Foster v. Patton, 104 S.W.2d 944, 946 (Tex. Civ. App. – Austin 1937, writ dism’d).

6. Road established as a third class county road could not be elevated to a higher

class by public prescriptive use, and subsequent purchasers retained the right to gate the road. Hays County v. Alexander, 640 S.W.2d 73 (Tex. App. – Austin 1982, no writ).

E. Abandonment of Public Roads.

1. Abandonment of a public road can be either by statute or common law. See Rutledge v. Staner, 9 S.W.3d 469, 471 (Tex. App. – Tyler 1999, pet. denied).

2. Common Law Abandonment. The use for which the property was dedicated becomes impossible or so highly improbable as to be practically impossible, or where the object of the use for which the property is dedicated wholly fails. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); Griffith v. Allison, 96 S.W.2d 74, 77 (Tex. 1936).

a. A decrease in the number of landowners using the public road does not

result in the road losing its purpose as a public road. Betts v. Reed. 165 S.W.3d 862, 871 (Tex. App. – Texarkana 2005, no pet.).

b. The party asserting abandonment of the public road has the burden of

proof on the issue of abandonment. Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 533 (Tex. App. – Fort Worth 1983, no writ); County of Calhoun v. Wilson, 425 S.W.2d 846, 853 (Tex. Civ. App. – Corpus Christi 1968, writ ref'd n.r.e.); Maples v. Henderson County, 259 S.W.2d 264, 267 (Tex. Civ. App.-Dallas 1953, writ ref'd n.r.e.)

c. Cessation of county maintenance does not as a matter of law establish

abandonment of the public road, but is some evidence of abandonment of public use. Compton v. Thacker, 474 S.W.2d 570 (Tex. Civ. App. – Dallas 1971, writ ref'd n.r.e.).

d. A common law abandonment is made up of two elements: (1) acts of

relinquishment and (2) the intention to abandon. Maples v. Henderson County, 259 S.W.2d 264, 267 (Tex. Civ. App. – Dallas 1953, writ ref'd n.r.e.). Both elements must be established by the party contending that the public road has been abandoned. Id.

F. County Roads.

1. Ownership of County Roads. “Though the counties bear the cost of acquiring the land necessary for the establishment of county roads within their respective counties, and the expense of maintaining and supervising them, and may hold


title to the real property necessary for such roads, the system of county roads belongs to the State since they are for the benefit of the State and its people.” Hays County v. Alexander, 640 S.W.2d 73 (Tex. App. – Austin 1982, no writ); Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915 (1925).

2. Control of County Roads. The commissioners court of a county may exercise

general control over all roads, highways, and bridges in the county. TEX. TRANSP. CODE § 251.016.

3. Required Classification of County Roads. The commissioners court is required

to classify each public road in the county as either a first-class road, second-class road, or third- class road. TEX. TRANSP. CODE § 251.007.

4. Free of Obstructions. A public road of any class must be free of obstructions.

TEX. TRANSP. CODE § 251.008.

5. Cattle Guards in Certain Counties. For counties with populations of less than 60,000, the commissioners court may authorize the construction of a cattle guard on a road of any class. TEX. TRANSP. CODE § 251.009. The commissioners court may authorize the repair and replacement of a cattle guard on a road of any class without regard to the population of the county. TEX. TRANSP. CODE § 251.009.

6. Erection of Gate on Third Class and Neighborhood Roads. A person, including

a neighborhood association, who owns or controls real property on which a third-class road or a neighborhood road is located for which the right-of-way was obtained without cost to the county may erect a gate across the road when necessary, subject to certain requirements concerning the design of the gate. TEX. TRANSP. CODE § 251.010.

7. The commissioners court of a county shall order that public roads be laid out,

opened, discontinued, closed, abandoned, vacated, or altered and assume control of streets and alleys in a municipality that does not have an active de facto municipal government. TEX. TRANSP. CODE § 251.051(a).

8. Unanimous Vote to Close, Abandon, or Vacate County Road. A unanimous

vote of the commissioners court is required to close, abandon, or vacate a public road or alter a public road, except to shorten it from end to end. TEX. TRANSP. CODE § 251.051(b).

a. "Abandon" means to relinquish the public's right of way in and use of

the road. TEX. TRANSP. CODE § 251.001(1). b. "Discontinue" means to discontinue the maintenance of the road. TEX.

TRANSP. CODE § 251.001(2).


c. "Vacate" means to terminate the existence of the road by direct action of

the commissioners court of a county. TEX. TRANSP. CODE § 251.001(3).

d. The term “close” is not defined in the County Road and Bridge Act. e. The commissioners court of a county may not discontinue [maintenance

of] a public road until a new road designated by the court as a replacement is ready to replace it. TEX. TRANSP. CODE § 251.051(c). See Attorney General Opinion GA-0088 (2003).

f. The commissioners court may not discontinue, close, or abandon an

entire first-class or second-class road unless the road has been vacated or unused for at least three years. TEX. TRANSP. CODE § 251.051(d).

g. Meyer v. Galveston, H. & S.A. Ry. Co., 50 S.W.2d 268, 273 (Tex.

Comm’n App. 1932)(holding approved): “The power to discontinue a public road conferred by the . . . statute is restricted to abandonment by the county of its maintenance as such public highway, and does not include the right to deny its use to the owners of property situated thereon.”

h. Simons v. Galveston, H. & S.A. Ry. Co., 57 S.W.2d 199 (Tex. Civ. App.

– Galveston 1933, writ dism’d): Parties using but not abutting public right-of-way closed by the county were properly denied an injunction, though court also noted they had other public road access to their properties.

i. Moore v. Commissioners Court of McCullough County, 239 S.W.2d

119 (Tex. Civ. App. – Austin 1951, writ ref’d): The commissioners court did not have authority to order the closing of a public road over the protest of those owning property adjacent to the road, who had used the road and purchased property abutting on a roadway, with reference to the fact that the road was then in existence and used as a means of ingress and egress from the property.

j. Compton v. Thacker, 474 S.W.2d 570, 574 (Tex. Civ. App. – Dallas

1971, writ ref’d n.r.e): “Even the statutory power of the commissioners' court to discontinue a county road by formal order is restricted to abandonment by the county of its maintenance as a public highway and does not include the power to deny its use to the owners of property situated on it.”

k. Smith County v. Thornton, 726 S.W.2d 2 (Tex. 1986): “Generally, the

commissioners courts have long possessed the power to lay out, open,


discontinue, or alter any public road. However, a landowner purchasing land abutting a public road acquires a right to use that passageway as a means of ingress and egress. The commissioners court's power, therefore, does not extend to closing a public road or portion thereof over the protest of an owner of land abutting the closed part of the road. The commissioners court does not have the right to close the passageway of ingress and egress vested when the landowner purchased the land, but it may withdraw its control and maintenance of such a road. Where property abuts a public road at a point other than the point of obstruction or the obstruction impairs but does not preclude the right to ingress and egress, the landowner's remedy against the county is a cause of action for the depreciation, if any, in the value of the land and the impairment of the owner's right of ingress and egress. Such depreciation constitutes a damaging of property within the meaning of the Texas Constitution art. I, § 17.” (citations omitted)

9. Jury of View for Creation of New Road. A new road ordered by the

commissioners court of a county must be laid out by a jury of view consisting of five property owners appointed by the commissioners court, and acting in accordance with procedures set forth in the statute. TEX. TRANSP. CODE § 251.054.

10. Abandonment of County Road. By statute a county road is abandoned when its

use has become so infrequent that one or more adjoining property owners have enclosed the road with a fence continuously for at least 20 years. The abandoned road may be reestablished as a public road only in the manner provided for establishing a new road. This section does not apply to a road to a cemetery or an access road that is reasonably necessary to reach adjoining real property. TEX. TRANSP. CODE § 251.057.

a. A property owner may not enjoin the entry or enforcement of an order of

a commissioners court, acting at the request of any person or on its own initiative, to close, abandon, and vacate a public road or portion of a public road unless the property owner is entitled to an injunction because the person owns property that abuts the portion of the road being closed, abandoned, and vacated or the portion of the road being closed, abandoned, and vacated provides the only ingress to or egress from the person's property. TEX. TRANSP. CODE § 251.058(a).

b. Title to a public road or portion of a public road that is closed,

abandoned, and vacated to the center line of the road vests on the date the order is signed by the county judge in the owner of the property that abuts the portion of the road being closed, abandoned, and vacated. A copy of the order shall be filed in the deed records of the county and serves as the official instrument of conveyance from the county to the owner of the abutting property. TEX. TRANSP. CODE § 251.058(b).


c. Section 251.058 does not deprive a person whose property abuts the

road at a point other than the portion of the road being closed, abandoned, and vacated of a right to seek compensation for damages caused by any depreciation in the value of the property or any impairment to the property owner's right of ingress to or egress from the property. TEX. TRANSP. CODE § 251.058(c).

11. When existing county roads are annexed by a city, they become city streets. It

is not necessary that they be separately dedicated to the city. Jezek v. City of Midland, 605 S.W.2d 544, 549 (Tex. 1980); City of Dallas v. Etheridge, 253 S.W.2d 640 (Tex. 1952); Gabbert v. City of Brownwood, 176 S.W.2d 344 (Tex. Civ. App. – Eastland 1943, writ ref'd).

12. Adoption of County Road Map. In 2003 the Legislature adopted Chapter 258 of

the Texas Transportation Code, which provides a procedure for adoption of a county road map upon publication notice and public posting and with an opportunity for a protesting party to appear before the commissioners court. TEX. TRANSP. CODE § 258.002.

a. The procedure is available with respect to roads in which the county has

acquired an interest under Texas Transportation Code Section 281.002 (purchase, dedication, condemnation, or final judgment of adverse possession) or as the result of having continuously maintained the road with public funds beginning prior to September 1, 1981. TEX. TRANSP. CODE § 258.002(a).

b. Protest is determined by a five member jury of view appointed by the

commissioners court, which conducts a public hearing, and the determination of the jury of view is binding on the commissioners court. TEX. TRANSP. CODE § 258.002(b).

c. Adoption of the county road map is conclusive evidence of the public’s

right to use a road shown on the county road map and the right of the county to spend public money to maintain the road. TEX. TRANSP. CODE § 258.003.

d. A person asserting private ownership of a road shown on the county

road map adopted under Chapter 258 must file suit not later than the second anniversary after adoption of the county road map by the commissioners court. TEX. TRANSP. CODE § 258.004.

e. Chapter 258 expires on September 1, 2009. TEX. TRANSP. CODE §

258.007.


f. One commentator has observed that Chapter 258 presents a variety of potential constitutional issues. See Miller, Country Roads, 28th Annual Advanced Real Estate Course, State Bar of Texas (2006).

II. PRIVATE ROAD EASEMENTS.

A. Express Road Easements.

1. Rules of Construction and Permitted Uses.

a. Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3rd 697, 700-1 (Tex. 2002)(easement for electric transmission lines did not permit cable television lines): “We apply basic principles of contract construction and interpretation when considering an express easement's terms. . . . The contracting parties' intentions, as expressed in the grant, determine the scope of the conveyed interest.”

b. No rights pass by implication, “except what is reasonably necessary” to

fairly enjoy the rights expressly granted.” Coleman v. Forister, 514 S.W.2d 899, 903 (Tex.1974).

c. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.1

cmt. d: “[Easement] language should be interpreted to accord with the meaning an ordinary purchaser would ascribe to it. . . .” This statement from the Restatement was approved by the Texas Supreme Court in Marcus Cable Associates, L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002).

2. Gates.

a. Gerstner v. Wilhelm, 584 S.W2d 955, 957 (Tex. Civ. App. – Austin

1979, writ dism’d): “[A] right to a roadway free from gates and bars depends upon the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used.” In Gerstner, the court of appeals upheld an injunction requiring removal of a gate when the easement granted “free and uninterrupted access.”

b. Stout v. Christian, 593 S.W.2d 146, 151 (Tex. Civ. App. – Austin 1980,

no writ): Temporary injunction allowing gates to be locked with keys given to servient estate owners upheld.

c. McDaniel v. Calvert, 875 S.W.2d 482, 485 (Tex. App. – Fort Worth

1994, no writ): “Whether a party has the right to erect gates depends upon the intent of the parties. The parties' intent can be determined by considering the terms of the grant, its purpose, the nature and situation of the property, and the manner in which it is used.” Gates ordered


removed because evidence showed it would “greatly affect” the use of the dominant estate, and gates had not been previously erected.

d. Strain v. Knipe, 1999 WL 33748004 (Tex. App. – Eastland 1999, no

pet.)(Mem. Op.). The test is whether the erection of a gate “unreasonably interferes” with the use of the easement by the owner of the dominant estate.

3. Installation of Utility Lines in Road Easement.

a. “The laying of pipes for water, gas, or oil has generally been said to be

not incidental to the rights of an owner of a right of way, the theory being that his rights are merely those of a right of passage and not in the fee, and that such installations constitute an additional burden upon the servient tenement or a trespass.” 3 A.L.R.3d 1256, § 8[a].

4. Property Benefited by Easement.

a. Unless the easement grants a more extended right of use, the grantee of

the easement may only use it to reach the benefited property and not other property owned by the grantee. Storms v. Tuck, 579 S.W.2d 447, 451 (Tex. 1979); Bickler v. Bickler, 403 S.W.2d 354, 359 (Tex. 1966); Jordan v. Rash, 749 S.W.2d 549 (Tex. App. – Waco 1988, no writ).

5. Use of Full Width.

a. If the easement width is defined by the grant of easement, then the

beneficiary of the easement has the right to use the full width of the easement and to require that the full width be free of encroachments, even if less than the full width of the easement is actually being used. Williams v. Thompson, 256 S.W.2d 399, 405 (Tex. 1953)(right to use to full width so long as lateral support was not negligently impaired); Unger v. Landry, 2005 WL 21396 (Tex. App. – Houston [1st Dist.] 2005, pet. denied)(Mem. Op.); Pagenstecher v. Biasiolli, 267 S.W.2d 576 (Tex. Civ. App. – San Antonio 1954, no writ).

B. Implied Road Easements.

1. General Statement of the Doctrine. As recognized in by the Texas Supreme Court in Mitchell v. Castellaw, 246 S.W.2d 163, 167 (Tex. 1952): “[W]here the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created-not only in favor of the parcel granted (“implied grant”) but also in favor of the one remaining in the ownership of the grantor (“implied reservation”). The basis of the doctrine is that the law reads


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=713&FindType=Y&ReferencePositionType=S&SerialNum=1979129237&ReferencePosition=451

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=713&FindType=Y&ReferencePositionType=S&SerialNum=1979129237&ReferencePosition=451

into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration. And in the case of an implied reservation it is not necessarily a bar to its creation that the grantor's deed, into which the law reads it, actually warrants the servient tract thereby conveyed to be free of incumbrance.”

2. Easement by Implied Grant:

a. The required elements to establish an easement by implied grant are well

settled by numerous Texas cases. Adams v. Norsworthy Ranch, Ltd., 975 S.W.2d 424, 429 (Tex. App. – Austin 1998, no pet.)(citing Daniel v. Fox, 917 S.W.2d 106, 110 (Tex. App. – San Antonio 1996, writ denied); Vinson v. Brown, 80 S.W.3d 221, 228-29 (Tex. App. – Austin 2002, no pet.); Bickler v. Bickler, 403 S.W.2d 354, 357 (Tex. 1966); Othen v. Rosier, 226 S.W.2d 622, 625 (Tex. 1950); Teich v. Haby, 408 S.W.2d 562, 566 (Tex. Civ. App. – San Antonio 1966, writ ref'd n.r.e.); Barrick v. Gillette, 187 S.W.2d 683, 687 (Tex. Civ. App. – Eastland 1945, writ ref'd w.o.m.); Scarborough v. Anderson Bros. Const. Co., 90 S.W.2d 305, 310 (Tex. Civ. App. – El Paso 1936, writ dism'd).

b. The proponent of a road easement by implied grant must show the

following elements:

i. unity of ownership between the dominant and servient estates;

ii. apparent use of the easement at the time the dominant estate was granted;

iii. continuous use of the easement, so that the parties must have

intended its use to pass by grant with the dominant estate; and

iv. reasonable necessity, rather than a mere convenience, of the easement to the use and enjoyment of the dominant estate.

c. The court considers whether the requirements are met at the time the

severance was made between the dominant estate and the servient estate. Vinson v. Brown, 80 S.W.3d 221, 228-29 (Tex. App.-Austin 2002, no pet.).

d. The party claiming the easement has the burden of establishing these

elements. Holden v. Weidenfeller, 929 S.W.2d 124, 129 (Tex. App. – San Antonio 1996, writ denied)(citing Wilson v. McGuffin, 749 S.W.2d 606, 609 (Tex. App.-Corpus Christi 1988, writ denied).


3. Easement by Implied Reservation.

a. The proponent of a road easement by implied reservation must show that

the easement is strictly necessary to the use and enjoyment of the dominant estate. Mitchell v. Castellaw, 246 S.W.2d 163, 168 (Tex. 1952)(“On the whole, we believe the requirement of strict necessity as prerequisite to all implied reservations of easements is more in accord with our local practices and traditions than a contrary view would be.”).

b. Merely showing that it would be expensive to obtain another access is

not sufficient to establish strict necessity. Miller v. Elliot, 94 S.W.3d 38, 44 (Tex. App. – Tyler 2002, pet. denied).

c. Subsequently acquired alternative access will defeat a claim of easement

by implied reservation, even if the alternative access is difficult or inconvenient. Sorrell v. Gengo, 49 S.W.3d 627, 630-1 (Tex. App. – Beaumont 2001, no pet.)(alternative access acquired during litigation defeated claim of easement by implied reservation).

4. Implied Way of Necessity.

a. To establish an easement by necessity, a party must establish (1) unity of

ownership of the dominant and servient estates prior to severance, (2) the necessity of a roadway, and (3) that the necessity existed at the time the estates were severed. Koonce v. J.E. Brite Estate, 663 S.W.2d 451, 452 (Tex. 1984).

b. Unlike implied road easements by grant or reservation, the elements of

the doctrine of implied way of necessity as stated by the courts do not include a requirement of a showing that the use be apparent, permanent and continuous. Daniel v. Fox, 917 S.W.2d 106 (Tex. App. – San Antonio 1996, writ denied); Parker v. Bains, 194 S.W.2d 569, 577 (Tex. Civ. App. – Galveston 1946, writ ref'd n.r.e.).

5. Road Easement by Estoppel.

a. The doctrine of easement by estoppel was originally adopted by the

Texas Supreme Court in F.J. Harrison & Co. v. Boring, 44 Tex. 255 (1875)(citing Wash. On Eas. and Serv.): “The owner of land may create an easement by a parol agreement or representation which has been so acted on by others as to create an estoppel in pais. As ‘where he has by parol agreement granted a right of such easement in his land, upon the faith of which the other party has expended moneys which will be lost and valueless if the right to enjoy such easement is revoked, equity has enjoined the owner of the first estate from preventing the use of it’.”


b. In Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 210 (Tex. 1963),

the Texas Supreme Court observed that: “The doctrine has also been used or referred to in opinions dealing with situations in which the owner sells land with reference to a map or plat upon which are shown and designated streets, alleys, squares and similar areas. It has been held that when a purchaser, relying upon such representations, buys with reference thereto and spends money to make improvements, the seller will not be heard to say that such easements do not exist.”

c. Conveyance of land by reference to a map or plat showing abutting

roads or streets results in the purchaser acquiring a private easement in the roads or streets shown on the plat. City of San Antonio v. Olivares, 505 S.W.2d 526, 530 (Tex. 1974); Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966); Horn v. Ross, 777 S.W.2d 755 (Tex. App. – San Antonio 1989, no writ). The purchaser has a right to keep the roads or streets open and to make reasonable use of them, even when the plat has not been recorded and the roads or streets have not been dedicated to public use. Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex. 1966).

d. The elements of easement by estoppel were stated by the Austin Court

of Appeals in Scott v. Cannon, 959 S.W.2d 712, 720 (Tex. App. – Austin 1998, pet. denied), as follows: “[T]he basic elements needed to establish an easement by estoppel are: (1) a representation communicated to a promisee; (2) the communication is believed; and (3) reliance on the communication.” See also Storms v. Tuck, 579 S.W.2d 447, 452-54 (Tex. 1979); Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App. – San Antonio 1996, writ denied).

i. The Austin Court of Appeals in Scott v. Cannon expressed the

view that the doctrine of easement by estoppel can only be applied in a vendor-vendee relationship. 959 S.W.2d at 712.

e. The representations giving rise to an easement by estoppel may be

verbal or nonverbal. Storms v. Tuck, 579 S.W.2d 447, 452-54 (Tex.1979).

f. However, there is a dispute in the case law on whether passive

acquiescence can give rise to an easement by estoppel:

i. “Acquiescing behavior by the owner of a servient estate may be conduct that can create an easement by estoppel.” Carpenter v. Morris, 2006 WL 2519203 (Tex. App. – Tyler 2006, no pet.)(Mem. Op.).


ii. Wallace v. McKinzie, 869 S.W.2d 592, 596 (Tex. App. – Amarillo 1993, writ denied): “The evidence shows that for a period of over seventy years the McKinzies have used the road in question, for ingress and egress to their landlocked property. The Wallaces have never objected to the McKinzies' use of the road. Neither have the Wallaces ever told the McKinzies they could not use the road. Thus, through their permissive and acquiescing behavior, the Wallaces have engaged in representations by their conduct. This evidence alone constitutes legally sufficient evidence ( i.e., some evidence) to support the jury's finding that the Wallaces made a representation to the McKinzies that certain rights exist to use the Wallaces' property.”

iii. Scott v. Cannon, 959 S.W.2d 712, 721 (Tex. App. – Austin 1998,

no pet.): “There was, at most, a passive acquiescence on the part of the Cannons that was relied upon by the Scotts. Such an acquiescence for no matter how long a period does not estop the Cannons from denying the Scotts' claim of an easement by estoppel.”

iv. Stallman v. Newman, 9 S.W.3d 243, 246 (Tex. App. – Houston

[14th Dist.] 1999, pet. denied): “The issue presented here is whether a failure to act, i.e., passive acquiescence in and of itself, can rise to the level of a "misrepresentation" so as to create an easement by estoppel where there has never been any unity of title between the two tracts of land. We find it cannot.”

v. Schilhab v. Dierlam, 2004 WL 1797585 (Tex. App. – Corpus

Christi 2004, no pet.)(Mem. Op.):“[A]ppellants contend that an easement by estoppel was created by the "silence and acquiescence" of appellee and her predecessors-in-title in the face of appellants' and their predecessors' use of the road. However, an easement by estoppel may not be predicated upon passive acquiescence alone.”

g. The elements of easement by estoppel apply at the time the

communication creating the alleged easement is made. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 872 (Tex. App. – Austin 1988, writ denied).

h. The doctrine of easement by estoppel is not applied as strictly as the

doctrine of implied easement. Payne v. Edmonson, 712 S.W.2d 793, 796-97 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.).

i. The courts acknowledge that the doctrine of easement by estoppel has

not been clearly defined, and application of the doctrine depends on the


facts of each case. Wilson v. McGuffin, 749 S.W.2d 606, 610 (Tex. App.-Corpus Christi 1988, writ denied).

j. Once created, an easement by estoppel is binding upon successors in

title if reliance upon the easement continues. Holden v. Weidenfeller, 929 S.W.2d 124, 131 (Tex. App. – San Antonio 1996, writ denied).

k. A concise discussion of the doctrine of easement by estoppel and a

collection of the key cases concerning the doctrine can be found in Cleaver v. Cundiff, 2006 WL 947720 (Tex. App. – Eastland 2006, pet. denied)(Mem. Op.).

6. Prescriptive Road Easement.

a. To obtain a prescriptive easement, one must use someone else's land in a

manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of time. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex.1979).

b. Although statutes of limitation are inapplicable to easements, Texas

courts have adopted the statutory period of 10 years as the period required to establish a prescriptive right under a theory of implied grant. Haas v. Choussard, 17 Tex. 588, 591 (1856); Baker v. Brown, 55 Tex. 377, 381 (1881); Wiegand v. Riojas, 547 S.W.2d 287 (Tex. Civ. App. – Austin 1977, no writ).

c. Johnson v. Faulk, 470 S.W.2d 144, 146-7 (Tex. Civ. App. – Tyler 1971,

no writ): “The mere use of a road on another's land, either by license or permission of the owner, is not within itself adverse and hostile, and affords no basis for prescription; and the fact of the owner's acquiescing and consenting to the use, and knowing that the road is being so used, does not import such use was adverse and hostile to the owner's right of use and possession; nor does such import that the user of the road has or is asserting adverse use or possession.”

d. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987): Continuous use

of the road for over 50 years was insufficient to establish prescriptive easement when the adverse claimant and the record owner both used the road.

e. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979): “It has long been the

law in Texas that when a landowner and the claimant of an easement both use the same way, the use by the claimant is not exclusive of the owner's use and therefore will not be considered adverse.”


f. Scott v. Cannon, 959 S.W.2d 712, 721-2 (Tex. App. – Austin 1998, pet. denied): Joint use of a road is not fatal to a claim of prescriptive road easement if the adverse claimant presents evidence of independent acts to show adversity. The Austin Court of Appeals characterized Vrazel v. Skrabanek and Brooks v. Jones as involving only joint use of the disputed road with no showing of independent acts of adversity. The reasoning of Scott v. Cannon was followed in Montange v. Hagelstein, 2006 WL 648115 (Tex. App. – Waco 2006, pet. denied)(Mem. Op.)

g. Mack v. Landry, 22 S.W.3d 524, 532 (Tex. App. – Houston [14th Dist.]

2000, no pet.): “Joint continuous use alone without an independent hostile act attempting to exclude all other persons, including the property owner from using the roadway, is not sufficient to establish an easement by prescription.”

h. Stallman v. Newman, 9 S.W.3d 243, 248 (Tex. App. – Houston [14th

Dist.] 1999, pet. denied ): “As distinguished from easements by estoppel in which one looks to the intent or actions of the alleged easement's grantor, an easement by prescription rests on the claimant's adverse actions under a color of right. . . . One general test to determine whether a claim is hostile is whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land. . . There must be a distinct and positive assertion of a right which is brought to the servient owner's attention and which is hostile to the owner's rights.”


Documents

2006 TEXAS LAND TITLE INSTITUTE PUBLIC ROADS AND PRIVATE ... · 2006 TEXAS LAND TITLE INSTITUTE PUBLIC ROADS AND PRIVATE ROAD EASEMENTS Frank Oliver Oliver & Oliver, P.C. 100 Congress