O'Connor v. Gragg

• Decision Date: 08 May 1959
• Docket Number: No. 3433,3433
• Citation: 324 S.W.2d 294
• Parties: Con J. O'CONNOR et al., Appellants, v. W. A. GRAGG, Appellee.
• Court: Texas Court of Appeals

Page 294

324 S.W.2d 294

Con J. O'CONNOR et al., Appellants, v. W. A. GRAGG, Appellee.

No. 3433.

Court of Civil Appeals of Texas, Eastland.

May 8, 1959.

Rehearing Denied May 29, 1959.

C. J. O' Connor, R. E. Bowers, L. H. Welch, Breckenridge, for appellant.

Jennings & Montgomery, Graham, for appellee.

COLLINGS, Justice.

W. A. Gragg brought this suit against Con J. O'Connor and H. G. McConnell seeking to establish a right of way across O'Connor's lands by necessity, by prescription and in a trial amendment alleged a roadway by dedication. During the trial plaintiff abandoned his plea of a way of necessity. Plaintiff sought to permanently enjoin defendants from interfering with his use and enjoyment of the purported roadway. Defendants answered by a general denial and alleged that any use of the roadway by plaintiff, his predecessors or any other person or persons was a permissive use only while O'Connor and his predecessors in title were also using same. The trial was before a jury and based upon the verdict judgment was rendered decreeing the right of way in controversy to be a public road by dedication and by prescription. Defendants were perpetually enjoined from interfering with plaintiff's use and enjoyment of the roadway. The defendants have appealed.

Appellants urge numerous points of error. Several of the points are directed to the question of whether the roadway had been dedicated as a public road by appellants' predecessors in title. Appellants contend that the court erred in submitting issues of dedication to the jury. They urge that there were no pleadings or evidence to show that any predecessor in title of appellant O'Connor ever dedicated the roadway to public use and that the court erred in refusing appellants' request for an instructed verdict. Appellants urge in the alternative that the evidence, if any, upon the question of dedication is insufficient to support the verdict, is against the great weight and preponderance of the evidence and that the court erred in entering judgment on the verdict. Appellants particularly urge that the court erred in submitting issues as to whether a roadway was acquired by dedication in substantially the same location as the roadway now in use. Appellants further urged that the court erred in refusing appellants' motion for an instructed verdict.

We overrule appellants' points complaining of lack of pleadings to show a roadway by dedication. Appellee Gragg filed a trial amendment alleging a dedication of the roadway by appellants' predecessors in title and that the public accepted such dedication and used the roadway as a public road.

We are of the opinion, contrary to appellants' contention, that the evidence supports the findings of the jury and the judgment of the court to the effect that the roadway in controversy is a public roadway by dedication. The statement of facts is voluminous and contains numerous exhibits. It is not practical to set out all of the testimony and evidence in detail. Stated briefly, however, the evidence shows 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 southernly 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 substantially the same location as it was when he first knew it in 1890. He testified that there were a few places where the present road deviates from the old road, but that it follows substantially the same route as the old road. He testified that the crossing of Veal Creek as it exists today is the same as it was when he first crossed it. He testified that he, his parents and others who then lived in the community used the road as a public road; that they believed and asserted that they had the right to do so; that he never heard of anyone asking permission to use the road and that no person ever objected or tried to stop them. He testified that the present road might be a little better than it was in the old days, but that it was not much better because the people who lived in the community all worked on the road together, helping to keep it passable from one and to the other. Numerous witnesses testified that the road has been a well defined and traveled road for many, many years and used by the community generally; that it is now in substantially the same position as the first time they saw it, and that the users never sought permission but used the road under a claim of right as a public road. The evidence shows that for many years the road served a public school, a cemetery and the inhabitants of Cedar Creek community, and that the public generally, who had cause to travel in that area, used the road. Appellant O'Connor, himself, who owns other land in the area, used the road long before he acquired title to the land which it crosses and acquired such title knowing of the existence of the road and of its use by the public generally as well as by appellee W. A. Gragg.

The elements essential to the creation of a valid dedication are: (1) a person competent to dedicate; (2) a public purpose that will be served by the dedication; (3) an offer or tender of dedication and (4) an acceptance of the offer or tender. 14-B Tex.Jur. 341.

No question is raised...