O'Connor v. Gragg, A-7415

• Decision Date: 19 October 1960
• Docket Number: No. A-7415,A-7415
• Citation: 161 Tex. 273,339 S.W.2d 878
• Parties: Con J. O'CONNOR et al., Petitioners, v. W. A. GRAGG, Respondent.
• Court: Texas Supreme Court

Page 878

339 S.W.2d 878

161 Tex. 273

Con J. O'CONNOR et al., Petitioners, v. W. A. GRAGG, Respondent.

No. A-7415.

Supreme Court of Texas.

Oct. 19, 1960.

Rehearing Denied Nov. 30. 1960.

L. H. Welch, Robert E. Bowers, Breckenridge, Graves, Dougherty & Gee, Robert J. Hearon, Jr., Austin, for petitioner.

Jennings & Montgomery, Graham, for respondent.

SMITH, Justice.

On June 3, 1957, respondent instituted this suit alleging that he was the owner of approximately 1,280 acres of land lying south of 560 acres owned by petitioners. On July 1, 1957, respondent filed his first amended original petition alleging (1) that he had, by necessity, acquired an easement over and across O'Connor's land; (2) that he had acquired a private easement by prescription.

On July 1, 1957, the trial court granted a temporary injunction restraining O'Connor and his co-defendant, McConnell, from 'interfering with the ingress and egress of W. A. Gragg, his family, guest(s) and employees to and from his property located in northeast Stephens County, Texas, the same being the A. E. Rickels Survey, Abstract No. 1945 and other land owned by W. A. Gragg immediately adjacent to the above named survey, by acts which tend to forbid or make impossible the use of the road leading off the Ivan-Graham-Farm-to-Market road traversing Con J. O'Connor's land which lies between the said farm-to-market road and A. Rickels Survey * * *.'

On August 22, 1957, plaintiff filed his second amended original petition alleging, in addition to the allegations in previous pleadings, an alternative plea to the effect that the general public had acquired an easement by prescription over O'Connor's land.

On May 20, 1958, and during the progress of the trial, respondent filed a trial amendment alleging that O'Connor's predecessors in title dedicated the roadway across the land '* * * to the public use as a public roadway, and that the public accepted such dedication and did in fact use such roadway as a public roadway, such public use has continued unabated through the years down to and including the present time. Plaintiff has at all times material to this suit relied upon said dedication and is now solely dependent upon the continued use of said roadway as a means of ingress and egress to and from his and his wife's land. Defendant is therefore estopped to deny the dedication of said roadway or to deny plaintiff the use thereof.'

The theory that Gragg was entitled to a way of necessity was apparently abandoned, and no issue thereon was submitted to the jury. Based upon the jury answers to the issues which were submitted, the trial court on June 16, 1958, rendered judgment in favor of Gragg. The judgment decreed that the strip of land twenty feet wide described in Gragg's petition as being a part of O'Connor's land was a public roadway, both by dedication as such and by prescriptive right. The court also perpetuated the temporary injunction enjoining the petitioners from obstructing the roadway or interfering with its use by 'plaintiff Gragg, his heirs and assigns, the members of his family, his agents, servants, employees, invitees and guests as a means of ingress and egress to and from plaintiff's above described land.'

It should be noted that the temporary injunction which was made permanent by the judgment was granted before the filing of the trial amendment.

The Court of Civil Appeals has affirmed the judgment of the trial court which declared the existence of a public roadway by dedication and by prescriptive right, although the opinion of the court expressly states that in view of its holding that Gragg had acquired an easement by dedication, 'We do not find it necessary to pass upon appellants' (O'Connor et al.) other points complaining of the jury findings, and of that portion of the judgment decreeing the right of way in question to be a public road by prescription.' (Enmphasis added) 324 S.W.2d 294, 298. Thus, we have a situation where the opinion of the Court of Civil Appeals deals altogether with the dedication issue, yet that part of the judgment of the trial court is affirmed wherein it was adjudged and decreed that Gragg and wife have, by prescriptive right, an easement over the described roadway as a means of ingress and egress to and from their described surveys.

We have concluded to sustain petitioners' points attacking the judgment of the Court of Civil Appeals affirming the judgment of the trial court wherein it was adjudged and decreed that the roadway in controversy is a public roadway by prescriptive right and that the Graggs and the public have a private easement and public easement, by prescription, respectively, over and across the roadway described in the judgment, as a means of ingress and egress to and from the Gragg land. There is no evidence in the record to the effect that the petitioners had no right to the full enjoyment of the roadway along with others. In fact, all the evidence shows that O'Connor and his predecessors in title used the road for the same purpose as the Graggs, which was to get to the paved public road north of all the land involved. There is no evidence which even tends to show a right, or a claim of right, of either the Graggs or the public to use the roadway to the exclusion of petitioners' right to use the roadway involved.

It is well settled that a public right of way by prescription can be established only by showing an uninterrupted use by the public under an adverse claim of right. See Ladies Benevolent Society of Beaumont v. Magnolia Cemetery Co., Tex.Com.App.1926, 288 S.W. 812. The permissive use of a roadway over the land of another contemporaneously with the owner's use of the same roadway is not adverse. The use of the roadway under the circumstances reflected by this record cannot ripen into a prescriptive right. In order for there to be an acquisition of a prescriptive right, an advers use of the easement must be shown. See Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626, and cases therein cited. The rule controlling here was well stated by this court in Othen v. Rosier, supra. The court said:

'An important essential in the acquisition of a prescriptive right is an adverse use of the easement. 'Generally, the hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership.' 17 Am.Jur., Easements, Sec. 63, p. 974, citing cases from 22 jurisdictions, among which are Weber v. Chaney, Tex.Civ.App., 5 S.W.2d 213, er. ref., and Callan v. Walters, Tex.Civ.App., 190 S.W. 829. Therefore, the same authority declares in Sec. 67, at page 978, 'The rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking,' citing, among other cases, Klein v. Gehrung, 25 Tex.Supp. 232, 78 Am.Dec. 565.'

It follows that the judgment making perpetual the temporary injunction cannot stand on the theory that respondent or the public had acquired a private or public easement by prescription.

However, the judgment of the trial court should not be reversed if there is evidence to support the finding of the jury on the issue of dedication. The evidence on that issue, viewed in the light most favorable to the respondent and discarding all adverse evidence, leads us to conclude and hold that a roadway across O'Connor's 'Upham and Gann' tracts was impliedly dedicated as a public road by O'Connor's predecessors in title prior to the acquisition of such land by O'Connor, and that at all pertinent times the public road thus dedicated has been situated in substantially the same location as the roadway in use at the time of the trial. The questions of dedication and location of the roadway were submitted to the jury and answers favorable to Gragg were returned and received by the court. The trial court in its charge defined 'dedicated' to mean '* * * devoted or appropriated to a public use. Land may be appropriated to a public use if the landowners, by unequivocal acts or conduct, manifest a consent to such use and the public has acted in reference to and upon the faith of such acts.'

The evidence shows that the roadway in question has existed for more than 68 years; that it has been a well-defined and well-traveled road. Several witnesses testified that they had been familiar with the road for many years. The record shows that Gann and Upham, the original owners of the surveys bearing their respective names, are deceased. None of the witnesses were able to state the exact origin of the user of the roadway by the public nor the ownership of such land at the time of such origin. The record does show, however, as stated in the Court of Civil Appeals' opinion, that 'the roadway in question begins at a point on a paved road running along the north line of the Upham Survey, which is a part of appellants' lands, and proceeds in a generally southern direction through appellants' Upham Survey, then south through another tract of land belonging to appellant O'Connor designated as the J. Poitevent No. 2 Survey and continues in a southerly direction into the Rickles Survey which belongs to appellee, W. A. Gragg. The evidence shows that this roadway has existed for more than 68 years; that previously there was another road east of the road in question leading to the paved road on the north serving substantially the same territory, but it is now covered by the Possum Kingdom Lake. Walter Rickles testified that he was 75 years of age and was born and reared on the Rickles Survey. He testified that he first remembers traveling the road in question in 1890; that he has recently traveled over the roadway and found that it still exists in...