Dunn v. Deussen
| Decision Date | 30 April 1954 |
| Docket Number | No. 15509,15509 |
| Citation | 268 S.W.2d 266 |
| Parties | DUNN v. DEUSSEN. |
| Court | Texas Court of Appeals |
Gerald E. Stockard, Denton, for appellant.
Coleman & Whitten, Denton, for appellee.
The appellee Alexander Deussen sued for a mandatory injunction to require appellant C. Hobson Dunn to remove a gate from an alleged public road. In his petition he alleged he was entitled to the relief sought, because (a) he had acquired a private easement by prescription; (b) the public had acquired a public easement by prescription; (c) the road had been dedicated to the public-by acts of appellant and his predecessors in title and by the acceptance of such dedication by the public; (d) appellee was entitled to a way of necessity.
The jury found in answer to special issues that:
(1) There is a road running the entire distance from the gate involved to the appellee's property; (1-A) said road had existed for a period of ten years immediately prior to the erection of the gate; (2) appellee, or his tenants, and his predecessors in title used the road continuously and uninterrupted for ten or more years immediately preceding erection of the gate; (3) such use for such period of time was open, visible and notorious, and (4) was adverse and hostile to appellant and those under whom he claims; (5) such use was under a claim of right; (6) appellee, or his tenants, and those under whom he holds title claimed the right to use the road to the exclusion of the rights of appellant and those under whom claims, inconsistent with the use of same by appellant for ten years or more before erection of the gate; (8) the road was used and traveled by the public generally continuously and uninterrupted for ten years or more immediately before erection of the fence; (9) such use was open, visible and notorious, and (10) hostile to appellant and those under whom he claims title; (11) such use and travel was under a claim of right, and (12) was with knowledge of appellant and those under whom he claims and without objection by them; (13) the road in question was dedicated as a public road by the owners of the surrounding lands prior to the purchase of such lands by appellant.
Based on the verdict the court entered judgment finding the road to be a public road; that appellee and his predecessors in title had acquired an easement and the right to use said road as a public road without obstruction; that the road was dedicated as a public road by the former owners of the respective tracts of land through which said road traveled and same was open and visible as a public road; and that the general public acquired such road by prescription for more than ten years prior to the purchase thereof by appellant. Injunction was granted ordering removal of the gate, and appellant was enjoined permanently from obstructing said road.
Appellant, by his first four points of error, contends the court should have instructed a verdict for him because there is no evidence to support a finding of dedication of land for a public road; no evidence to support findings that the road had been used adversely and hostile to appellant and his predecessors; no evidence to support issues 10 and 11 on which court based judgment that public road was established by prescription; and no evidence to support issues 8 and 9.
The evidence must be viewed in the light most favorable to the verdict of the jury, and the judgment of the trial court must be sustained if there is evidence to support any of appellee's theories.
It is impracticable, if not impossible, to set out all the pertinent evidence contained in the 731 pages of the statement of facts. In substance, however, the evidence favorable to the jury verdict is as follows: prior to the time appellant acquired any land in the area involved, the road in question entered what is now the Dunn ranch at the northeast corner of the Cook tract and the southeast corner of the Dalton tract; it continued west along the north boundary of the Cook tract and south boundary of the Dalton tract and the south boundary of the Langley and Harris tracts to an offset corner in the Harris tract where it turned south along the west boundary of the Cook tract and the east line of the Harris tract and thence on to appellee's tract. Prior to the purchase by appellant, the Dalton, Langley, Harris and Cook tracts had each belonged to different parties. Appellee acquired his farm in three different parcels from 1939 to 1943. Appellant acquired the Harris tract in 1943; the Cook tract in 1948; the Langley tract in 1949; and the Dalton tract sometime after the gate was erected. The gate was erected by appellant in 1949.
One witness has been familiar with the road since 1908 or 1909. At that time it was fenced all the way on both sides from appellee's place past the point where appellant has erected the gate and on to a connecting road to Ponder, Denton and Fort Worth. Throughout the forty-four years he has known the road it has been traveled by the general public from appellee's farm all the way out. The county has graded and 'kept it up' for a long period of time. Other witnesses testified to familiarity with the road for periods as long as thirty years. There was always a fence on the north side of the road. At times the fence along the Cook side would be down a part of the way, but no adjacent owner ever plowed or in any other way attempted to use the roadway for any purpose other than a road. The south fence had been restored in full before appellant bought any of the tracts and he traveled down the road between the fences before he bought any of the various tracts. The road is the only practical road for appellee to travel to get to Ponder or anywhere else and, of course, the only way for any part of the public having business with appellee or his tenants, or visitors to tenants, to get to the farm. The road has the reputation in the community of being a public road. The public, including the school bus, still uses it. The witness...
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Cowan v. Worrell
...S.W.3d at 790 ; Compton v. Thacker , 474 S.W.2d 570, 572 (Tex. App.—Dallas 1971, writ ref'd n.r.e.) ; Dunn v. Deussen , 268 S.W.2d 266, 269 (Tex. App.—Fort Worth 1954, writ ref'd n.r.e.). This presumption applies when the ownership of the land at the time that the road originated is "shroud......
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Gutierrez v. County of Zapata, 04-95-00720-CV
...it as a road. Neither official adoption nor recognition is necessary in cases of implied dedication. Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex.Civ.App.--Fort Worth 1954, writ ref'd n.r.e.).5 The park and camp contained as many as thirty-seven mobile homes and twenty travel trailers at one t......
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Eastex Wildlife Conservation Ass'n v. Jasper, et al., County Dog & Wildlife Protective Ass'n
...error ref. n.r.e.); Chambers County v. Frost, 356 S.W.2d 470 (Waco Civ.App ., 1962, error ref. n.r.e.); Dunn v. Deussen, 268 S.W.2d 266 (Fort Worth Civ.App., 1954, error ref. n.r.e.); and Brown v. Kelley, 212 S .W.2d 834, 837 (Fort Worth Civ.App., 1948, no writ), cited with approval in Owen......
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Cowan v. Worrell
... ... Compton v. Thacker , 474 S.W.2d 570, 572 (Tex ... App.-Dallas 1971, writ ref'd n.r.e.); Dunn v ... Deussen , 268 S.W.2d 266, 269 (Tex. App.-Fort Worth 1954, ... writ ref'd n.r.e.). This presumption applies when the ... ...