City of Austin v. Hall

• Decision Date: 07 June 1900
• Citation: 57 S.W. 563
• Parties: CITY OF AUSTIN v. HALL et al.
• Court: Texas Supreme Court

Page 563

57 S.W. 563

CITY OF AUSTIN v. HALL et al.

Supreme Court of Texas.

June 7, 1900.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by Amelia Hall and others against the city of Austin to recover for interference with a prescriptive right to use a road. Certified questions from the court of civil appeals.

For opinion in court of civil appeals, see 48 S. W. 53.

V. L. Brooks, for appellant. Jno. Dowell, for appellee.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and questions:

"Appellee Amelia Hall, joined pro forma by her husband, brought this suit to recover damages from the city of Austin alleged to have been sustained by her as the owner of a tract of land, with improvements, constituting the homestead of herself and husband, and located west of the Colorado river, near the city of Austin. In the main, the plaintiffs' case is based upon the theory that the construction and maintenance by the city of a certain dam across the Colorado river has destroyed a certain roadway leading from the plaintiffs' land to the city, and constituting plaintiffs' shortest and best roadway to and from the city. It was not shown that the land over which the road runs had ever been condemned in the manner prescribed by statute, or donated by the owners thereof, for a public road; and the plaintiffs sought to establish the fact that it was a public road by prescription, resulting from long-continued use by the public. The road extended across various tracts of land, and also crossed the Colorado river. As to some of these tracts, the evidence does not show who were the owners during the prescriptive period, and it does not show whether any of the owners were sui juris during the time referred to. In fact, there was no direct proof that title to the tracts of land referred to had ever passed out of the state. Furthermore, testimony was submitted showing that the Colorado river, at and about the point where the road crossed, was of an average width of more than 30 feet before the building of the dam, and that the lines of surveys fronting thereon do not cross the river. With the foregoing statement and explanation, the court of civil appeals certifies to the supreme court for decision the following questions, which are material to the rights of the parties and are presented in appellant's brief:

"(1) In order for the plaintiffs to establish a prescriptive right to the road, was it necessary to show that during the prescriptive period the servient estates—the various tracts of land against which the prescriptive right is claimed—were owned by persons free from legal disability, and against whom limitation or prescriptive right could be acquired by adverse use?

"(2) Under the facts stated, conceding that the land on each side of the river where the road crossed it had been granted by the state to individuals, did the title to the channel of the river remain in the state, so that no prescriptive right to the use thereof as a public road could be acquired by the plaintiffs? In other words, is a stream, navigable within the purview of article 4147 of the Revised Statutes, because it is of an average width of thirty feet, a navigable stream in the sense that abutting owners acquire title to the water mark only, and title to the channel of the stream remains in the government?"

To the first question we reply in the affirmative.

To the second question we answer: Article 4147, Rev. St., gives to the streams described therein the character of navigable streams under the rules which...