Camilla Twin Harbor V.F.D. v. Plemmons, 082699

Decision Date04 November 1999
Citation998 S.W.2d 413
Parties(Tex.App.-Beaumont 1999) CAMILLA TWIN HARBOR VOLUNTEER FIRE DEPARTMENT, INC., Appellant, v. LEROY PLEMMONS AND TIME LAND COMPANY, Appellees. NO. 09-99-136 CV.
CourtTexas Court of Appeals

Before Walker, C.J., Burgess and Stover, JJ.

EARL B. STOVER, Justice.

OPINION

This is an appeal brought by the Camilla Twin Harbor Volunteer Fire Department, Inc. ("Fire Department") from a bench trial wherein the trial court granted an injunction preventing the Fire Department from using a roadway abutting its property. The Fire Department initiated this suit seeking temporary and permanent injunctions restraining Leroy Plemmons and Time Land Company, a partnership composed of Mike R. Parker and Terry White ("appellees"), from interfering with the Fire Department's use of the abutting roadway. The appellees counter-claimed asking for a permanent injunction prohibiting the Fire Department's use of the roadway. The trial court found the roadway to be a private road. The court's judgment provides the Fire Department is to have the authority to use the roadway for a period of ten months after which its rights cease and it is thereafter enjoined from using the road. As submitted by the Fire Department, the sole question on appeal is whether the Fire Department has ingress or egressrights along the abutting road.

In a bench trial, the granting or refusal of a permanent injunction is within the sound discretion of the trial court. See Isuani v. Manske-Sheffield Radiology Group, P.A., 805 S.W.2d 602, 606 (Tex. App.--Beaumont 1991, writ denied). On appeal, a review of the trial court's action is limited to the question of whether such action constituted an abuse of discretion. Id. at 606-7. A trial court may be reversed for abusing its discretion only if the court "acted in an unreasonable or arbitrary manner" or "'without reference to any guiding rules and principles.'" Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). "[T]he court of appeals may not reverse for abuse of discretion merely because it disagrees with a decision by the trial court, if that decision was within the trial court's discretionary authority." Id. "Under the abuse of discretion standard, legal and factual sufficiency of the evidence, although not independent grounds for asserting error, are relevant facts in assessing whether the trial court abused its discretion." In the Interest of A.D.H., 979 S.W.2d 445, 446 (Tex. App.--Beaumont 1998, no pet.); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex. App.--Fort Worth 1995, writ denied).

Before entering into our discussion of the evidence relating to the road involved, we state, very generally, the rule relating to the establishment of public roads:

All roads which have been laid out and established by authority of the commissioners' courts 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, 82 Tex. 26, 17 S.W. 520 (1891) (emphasis added) (citation omitted). In the instant case, there was no evidence tending to prove that the road in question had been established or laid out by the Commissioners' Court. Where no statute is applicable, common law controls. Under the common law, an owner of private property can either expressly or impliedly make known his intention to dedicate a road.

The intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner. The establishment of facts constituting dedication cannot be left to conjecture and when the asserted dedication rests in estoppel, the evidence should clearly and satisfactorily establish the necessary facts. Henderson v. Frio County, 362 S.W.2d 406 (Tex. Civ. App.--San Antonio 1962, writ ref'd n.r.e.).

"Since, by a dedication, valuable rights in land pass from the owner, no presumption of an intent to dedicate arises, unless it is clearly shown by his acts and declarations, or by a line of conduct, the only reasonable explanation of which is that a dedication was intended." International & G.N.R. Co. v. Cuneo, 108 S.W. 714, 716-17 (Tex. Civ. App. 1908, no writ).

Lee v. Uvalde County, 616 S.W.2d 367, 372 (Tex. Civ. App.--Tyler 1981, no writ) (some citations omitted). "Generally, an express dedication is accomplished by deed or a written document." Gutierrez v. County of Zapata, 951 S.W.2d 831, 837 (Tex. App.--San Antonio 1997, no writ). The question of whether a roadway has been acquired by implied dedication is a question of fact. See Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985); Lee, 616 S.W.2d at 372. Implied dedication requires a clear and unequivocal intention on the part of the landowner to appropriate the land to public use, along with an acceptance by the public. Gutierrez, 951 S.W.2d at 838; see also Eastex Wildlife Conservation Ass'n v. Jasper, 450 S.W.2d 904, 913 (Tex. Civ. App.--Beaumont 1970, writ ref'd n.r.e.) (unless landowner "intended to dedicate the land absolutely and irrevocably to the use of the public," plaintiffs could not prevail under theory of implied dedication).

The parties stipulated that W. B. Etheridge, II is the common source of title to the acreage with the disputed roadway; hence, there is no title dispute to the property. The only issue is in regards to the Fire Department's use of the road. At the time of conveyance of a 25.2739 acres tract of land to Etheridge, a plat of Paradise Cove, a subdivision neighboring the 25.2739 acres, was of record in the San Jacinto County clerk's office. When the plat was prepared for the subdivision, there was a problem with access to the subdivision. To solve this problem, the plat depicted a proposed entrance road across the 25.2739 acres. Later in time, a new roadway was created, and it took the place of the original proposed roadway across the 25.2739 acre tract.

On January 23, 1992, Etheridge donated a 0.737 acre tract of land to the Fire Department. This tract of land was carved out of the 25.2739 acres tract. The 0.737 acre tract has approximately 205 feet of frontage access to a farm to market road, and abuts the original Paradise Cove proposed road on its southwestern border.1 Although neither the deed, nor the field note description indicates a conveyance of an easement to the Fire Department, Etheridge gave the Fire Department permission to use the abutting roadway. In an unrecorded letter, Etheridge described the donation of the property and stated his intent regarding the Fire Department's use of the abutting road. The letter states, "It is my understanding that the Camilla Voluntary Fire Department will insure that the entrance road and the first (300) feet into my 25.2739 acre tract are maintained."

The Fire Department erected a firehouse on the property in 1994. The front entrance to the firehouse is accessed by the proposed roadway. The Fire Department has continuously used the roadway as the entrance to its building. In addition, the Fire Department laid a concrete slab for its entrance. Although the...

To continue reading

Request your trial
5 cases
  • Betts v. Reed
    • United States
    • Supreme Court of Texas
    • 6 Julio 2005
    ...S.W.2d 16, 19 (Tex.1978); Stein, 53 S.W.3d at 41-42; Gutierrez, 951 S.W.2d at 842; see Camilla Twin Harbor Volunteer Fire Dep't v. Plemmons, 998 S.W.2d 413, 415 (Tex.App.-Beaumont 1999, pet. denied). Because Reed introduced evidence the public continuously used the road for over seventy yea......
  • Reed v. Wright
    • United States
    • Court of Appeals of Texas
    • 8 Diciembre 2004
    ...at 41-42; Gutierrez v. County of Zapata, 951 S.W.2d 831, 842 (Tex.App.-San Antonio 1997, no writ); see Camilla Twin Harbor Vol. Fire Dep't, Inc. v. Plemmons, 998 S.W.2d 413, 415 (Tex.App.-Beaumont 1999, no pet.). Because the Reeds conclusively proved the public continuously used the road fo......
  • Reed v. Wright, No. 06-03-00127-CV (TX 1/20/2005), 06-03-00127-CV.
    • United States
    • Supreme Court of Texas
    • 20 Enero 2005
    ...at 41-42; Gutierrez v. County of Zapata, 951 S.W.2d 831, 842 (Tex. App.-San Antonio 1997, no writ); see Camilla Twin Harbor Vol. Fire Dep't, Inc. v. Flemmons, 998 S.W.2d 413, 415 (Tex. App.-Beaumont 1999, no pet.). Because the Reeds conclusively proved the public continuously used the road ......
  • Rogers v. Stover, No. 06-07-00053-CV (Tex. App. 1/18/2008)
    • United States
    • Court of Appeals of Texas
    • 18 Enero 2008
    ...road by the government or by neighbors can all become important in our review. See Camilla Twin Harbor Volunteer Fire Dep't, Inc. v. Plemmons, 998 S.W.2d 413, 415 (Tex. App.-Beaumont 1999, pet. denied).2 As we recently explained in Reed, uncontested evidence of the long and continuous use o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT