Breithaupt v. Navarro County

• Decision Date: 02 August 1984
• Docket Number: No. 10-84-020-CV,10-84-020-CV
• Parties: Jim BREITHAUPT and Frances Breithaupt, Appellants, v. NAVARRO COUNTY, Appellee.
• Court: Texas Court of Appeals

Page 335

675 S.W.2d 335

Jim BREITHAUPT and Frances Breithaupt, Appellants, v. NAVARRO COUNTY, Appellee.

No. 10-84-020-CV.

Court of Appeals of Texas,

Waco.

Aug. 2, 1984.

Rehearing Denied Aug. 30, 1984.

Michael H. Sebastian, Dallas, Jack C. Ogg, Sowell & Ogg, P.C., Houston, for appellants.

Patrick C. Batchelor, Crim. Dist. Atty., John H. Jackson, Asst. Crim. Dist. Atty., Corsicana, for appellee.

OPINION

THOMAS, Justice.

This is a suit for declaratory judgment and injunctive relief by Navarro County against Jim Breithaupt and his mother, Frances. The Breithaupts cross-actioned to recover damages allegedly resulting from the County's negligence. Following a jury trial, the court entered judgment for the County, declaring a rural road a "public road" and enjoining the Breithaupts from directly or indirectly obstructing the road's use or interfering with its maintenance by the County.

As Appellants, the Breithaupts contend: (1) art. 6812h bars the County's cause of action ¹; (2) they have a right to construct a gate across the road under art. 6712; (3) the judgment violates Rule 683, because it fails to specify the reasons for the injunction, the acts prohibited or the legal theory on which the court declares the road to be public 1; (4) the evidence is legally and factually insufficient to support the jury's affirmative answers to all three special issues; (5) the court erred when it refused to submit a cluster of four issues relating to their cross-action; and (6) the court erred when it excluded a portion of Frances Breithaupt's testimony. We affirm.

The Breithaupts requested that Navarro County close the disputed road in May, 1980, but the County refused. In November, 1982, Jim Breithaupt constructed a gate across the road. The County gave the Breithaupts written notice that, if the obstruction was not removed within ten days, the County would remove it. Eleven days later, the County used its personnel and equipment to remove the gate posts and gate. When the County learned in July, 1983, that Jim Breithaupt was preparing to block the road by installing another gate, the County sought a declaratory judgment and injunctive relief. The County was granted a preliminary restraining order, which was continued as a temporary injunction pending trial.

Several witnesses testified the public had used the road as a public thoroughfare since shortly after the turn of the century. The road, which has been maintained by the County for many years, has been used for decades by cars, trucks and occasionally by school buses and mail carriers. The Breithaupts admitted the public had used the road for many years. Jim Breithaupt insisted the road was open for permissive use by the public, or as he stated it, "The fact they were using it means I gave my permission." Frances Breithaupt testified her deceased husband and his predecessors in title never intended the road to be a public thoroughfare or considered it a public road. According to her, the public was welcome to use the road as long as it did not interfere with her husband's business. Occasionally, Jim Breithaupt or his father denied a person the right to gather pecans or discharge firearms from the road or to park on the road and consume alcoholic beverages.

The first point alleges the court erred when it overruled a special exception to the County's pleadings. The special exception relies on art. 6812h, which became effective August 31, 1981. Among other things, art. 6812h provides that: (1) a county may not establish, acquire or receive any public interest in a private road, except by purchase, condemnation, dedication or adverse possession; (2) adverse possession cannot be established by proving the public has used a private road with the owner's permission or that public funds have been used to maintain it; (3) neither verbal dedication nor intent to dedicate by overt act is sufficient to establish a public interest in a private road; and (4) once established, the public's interest in a road must be recorded in the county's records. The evidence is undisputed that the public's interest is not shown by the County's records. The Breithaupts argue that art. 6812h prevents the public character of the road from being established by prescriptive easement or implied dedication under the evidence, and the County's cause of action is thus barred.

Art. 6812h does not bar this proceeding, because the County is not presently establishing or acquiring a public interest in a private road. The road's public character was established, if at all, many decades prior to the passage of art. 6812h, and the County is merely seeking a judicial declaration of that fact and accompanying injunctive relief to enforce the public's vested interest.

Art. 6812h cannot be applied retroactively to impair the public's vested right. Tex. Const. art. I, § 16, prohibits retroactive laws, although statutes may operate retroactively when such application is intended and will not impair vested rights. Cox v. Robison, 105 Tex. 426, 150 S.W. 1149 (1912). Furthermore, a statute will not be applied retroactively unless it appears by fair implication from the language used that the legislature intended it to be so applied. State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707 (1943). The language of art. 6812h does not expressly or impliedly indicate the legislature intended it to be applied retroactively. To apply art. 6812h retroactively would dispossess the public of vested rights in countless miles of public roads across Texas, where the public interest has not been established under the statute's provisions. The court did not err when it denied the special exception, and point one is overruled.

Art. 6704 requires a county to classify its public roads as first, second or third-class roads, depending upon the width of the roadway and the causeway. The requisites for each class of road are: first-class roads shall not be less than 40 feet nor more than 100 feet wide, with a causeway at least 16 feet wide; second-class roads shall conform to the requirements of first-class roads, except they shall not be less than 40 feet wide; third-class roads shall not be less than 20 feet wide, and the causeway shall not be less than 12 feet wide. The County admitted it had not classified the road.

Under their second point, the Breithaupts contend that, even though the road is a public thoroughfare, they had a right to erect a gate across the road under art. 6712. They argue the road, though unclassified by the County, is a third-class road. Art. 6712 authorizes an owner to erect a gate across a third-class or neighborhood road, as long as the gate is at least ten feet wide and free of overhead obstructions.

The county commissioner in whose precinct the road is situated testified the County had maintained the "cap" (causeway) on the road between 18 and 20 feet wide, before the Breithaupts used a motor grader prior to trial to narrow the causeway. The Breithaupts' surveyor testified the width of the road, measured from fence-to-fence at its narrowest points, averaged "a little over 40 feet", with its causeway ranging from 9 to 13 feet wide. If the road had an unaltered causeway of 18 to 20 feet, the road would meet the requisites of a second-class road, because its width averaged "a little over 40 feet". However, if the road had an unaltered causeway between 16 and 12 feet wide, the road would be a third-class road.

Establishing the road as a third-class road, which would deny the County's right to an injunction, was a defensive matter for the Breithaupts to plead, prove and secure a favorable finding. Conner v. State, 21 Tex.Ct.App. 176, 17 S.W. 157 (1886). Conflicts in the evidence on the width of the causeway presented a fact issue on the road's classification. The Breithaupts did not plead the road's classification as a defensive matter, nor did they request a defensive issue on its classification. They did, however, request a classification issue as one of a series of four issues relating to their cross-action for negligence. In their ninth point, the Breithaupts complain of the court's failure to submit their requested issues. We combine the second and ninth points for disposition.

Before the charge was read to the jury, the Breithaupts dictated an objection to the two special issues used by the County to establish the public's right to use the road through prescriptive easement. They also objected to the charge because it omitted four special issues relating to their cross-action. After orally requesting issues on the road's classification, negligence, producing cause and damages, with an instruction specifying the classes of roads under art. 6704 and a definition of negligence, the Breithaupts failed to submit the requested issues, instruction and definition in writing to the judge for his official approval or rejection. The court overruled all objections to the charge.

Requests by either party for any instructions, special issues, definitions or explanatory instructions must be submitted in writing separate and apart from objections to the court's charge. Rule 273. When an instruction, special issue, definition or explanatory instruction is requested and refused, the...