Eastex Wildlife Conservation Ass'n v. Jasper, et al., County Dog & Wildlife Protective Ass'n

• Decision Date: 05 February 1970
• Docket Number: No. 7049,7049
• Parties: EASTEX WILDLIFE CONSERVATION ASSOCIATION et al., Appellants, v. JASPER, ET AL., COUNTY DOG AND WILDLIFE PROTECTIVE ASSOCIATION, et al., Appellees.
• Court: Texas Court of Appeals

Page 904

450 S.W.2d 904

EASTEX WILDLIFE CONSERVATION ASSOCIATION et al., Appellants, v. JASPER, ET AL., COUNTY DOG AND WILDLIFE PROTECTIVE ASSOCIATION, et al., Appellees.

No. 7049.

Court of Civil Appeals of Texas Beaumont.

Feb. 5, 1970.

Rehearing Denied Feb. 26, 1970.

Whitworth & Whitworth, Jasper, Josiah Wheat, Woodville, James A. Pakenham, Houston, for appellants.

R. A. Richardson, Kountze, on appeal, Edward C. Fritz, Dallas, on motion for rehearing, for appellees.

KEITH, Justice.

The appeal is from a judgment, based upon a favorable jury verdict, declaring three roads in Tyler County to be public or county roads and enjoining the defendants from interfering with the public use thereof. Our record is voluminous and the parties raise many points of both substantive and procedural law so that this opinion will, of necessity, be lengthy.

The defendants are the owners of the surface estate over which the roads are located, the mineral estate having been severed many years prior to this litigation. Plaintiffs did not claim to be the owners of either the surface or mineral estates in any of the land involved, nor do they assert that they were the owners of any land abutting upon or adjacent to any of the roads. They made no claim of right of user in order to reach any land in which they had any legal interest. Instead, plaintiffs contend that they have a right of user because the roads were 'public' or 'county' roads and they, as members of the general public, had the right to the unrestricted use thereof.

The plaintiffs did not offer any proof that any of the roads had been established or laid out under any of the provisions of the statutes, Title 116, Chapter 2, Vernon's Ann.Civ.St., nor did they offer any proof of any formal dedication by any instrument in writing or affirmative act of the landowners.

Two of the roads, Joe's Lake Road and Bush Lake Road, are located upon lands owned by Estatex, Inc., and its operating subsidiary or division, Southwestern Timber Company, and there seems little dispute between the parties that Eastex and its predecessors in title have been in possession of the land for approximately a half century. Plaintiffs contend that these two roads are 'public' or 'county' roads based upon the theory of implied dedication and prescriptive right. Because of the variation in the testimony as to these two roads, we will discuss them separately.

The third road is on land owned by Kirby Lumber Corporation ('Kirby') and the plaintiffs' theory is based solely upon the theory of implied dedication. This road has not been fenced nor has any gate been placed so as to prevent its use.

Suit was filed in December, 1967 seeking a declaratory judgment that the roads in question were public or county roads and an ancillary injunction to restrain defendant landowners from interfering with the plaintiffs in thier use thereof was sought. The jury verdict was favorable to the plaintiffs and judgment was entered in accordance therewith.

It appears that the action was precipitated when Southwestern, during 1965, errected locked gates at several places along the two roads through the property of Eastex, such action being taken several months after the entry of an order by the Commissioners' Court of Tyler County abandoning the Joe's Lake Road.

Before entering into our discussion of the evidence relating to the three roads involved, we state, very generally, the rule relating to the establishment of public roads. Judge Gaines, in Worthington v. Wade 82 Tex. 26, 28, 17 S.W. 550 (1891), gives us this starting point:

'All roads which have been laid out and established by authority of the commissioners' courts are public roads. Rev.Stats., art. 4315 (now Art. 6702, V.A.C.S.). 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.'

Hereafter we will discuss the evidence more in detail but it is sufficient to state at this point that there was no evidence of any kind or character from any source which tended to prove that the two roads in question (Joe's Lake Road and Bush Lake Road) had been established or laid out by the Commissioners' Court. It was affirmatively established that no formal action was taken by the Commissioners' Court of Tyler County ot establish the roads.

In establishing public roads, the county can act only through the Commissioners' Court, the individual Commissioners having no authority to bind the county by their separate actions. Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451, 455 (1948). The court can act as a body only through its minutes. Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 419 (Waco Civ.App., 1968), affirmed, 436 S.W .2d 320 (Tex.Sup., 1969). Or, as said by Judge Gaines in Gano v. County of Palo Pinto, 71 Tex. 99, 8 S.W. 634, 635 (1888), 'The commissioners' court is a court of record, and speaks through its minutes, and not by the mouths of the members of the body.'

Notwithstanding the complete lack of evidence to show that either of the roads had been laid out or established by official action of the Commissioners' Court of Tyler County or proof of long-continued use thereof 'with the assent of the owner,' the court submitted issues as to the two roads, as illustrated by this issue:

'Do you find from a preponderance of the evidence that the Joe's Lake Road * * * (described by reference to Defendants' Exhibit No. One) was a 'County Road' as that term is defined herein, at the time Southwestern Timber Company erected locked gates across it?'

The definition accompanying the charge was: 'The term 'County Road' as used in this charge is defined by Texas law to mean a public way for normal means of travel within a County under County supervision and control.'

Applying the rules of law set forth in the cases discussed, we find no evidence of probative effect in the record which supports the jury's answer that Joe's Lake Road and Bush Lake Road were 'County Roads' as defined in the charge, or in the law. It follows, therefore, that the 'no evidence' points of the defendants are sustained and the answers to Special Issues Nos. 4 and 14 are set aside.

There is still another reason why the answer to Special Issue No. 4, applicable to Joe's Lake Road alone, must be set aside. We find in our record an order of the Commissioners' Court, entered on December 23, 1964, abandoning Joe's Lake Road, the order reading as follows:

'Comm. Riley made the motion, seconded by Comm. Powell to abandon a graded road in Precinct #4, this road is called Joe's Lake Road from Hwy 92 to Sheffield Ferry Road. All voted yes, none voted no.'

Plaintiffs' witness, W. D. Ramer, who gave testimony as to his employment with the Commissioner of Precinct No. 4 and the maintenance of the road, said that he quit working the road in 1964, before the erection of any gates across the road. It seems to be undisputed in our record that the first gates were not erected across the road until some five or six months after the entry of the order of abandonment, one being placed thereon as late as 1967. This suit was instituted on December 11, 1967.

Our study of the record does not indicate that there was bad faith on the part of the Commissioners' Court in entering the order abandoning the road in December, 1964. For all that appears, the order was entered in the public interest by a lawfully constituted body acting within the scope of its delegated authority. It follows, therefore, that the road was not, under the court's definition, under the supervision and control of Tyler County At the time of the erection of the gates.

No one of the plaintiffs claims to own any land abutting the abandoned road nor had any of them acquired any private easements therein. The case most nearly in point which has been cited to us or which we have found in our independent research is that of Simons v. Galveston, H. & S.A. Ry. Co., 57 S.W.2d 199, 202 (Galveston Civ.App., 1933, error dism.). There a crossing over a railroad in the Town of Edna, which had been openly and generally used by the public for a period of from 18 to 40 years, was closed by an ex parte order 'initiated and carried out' by the railroad companies and the Commissioners' Court, without notice to the public or compliance with the statutes. The court said:

'The prescriptive use shown of this crossing would at best only create a public easement or right to maintain it as a public way, which would at all times remain under the control of the commissioners of Jackson county while acting in good faith and presumably at least for the best interest of its citizens, and would not in such circumstances create any private rights in individuals owning land not abutting upon it.'

A further pertinent holding of Simons is this:

'Neither, in our opinion, was it necessary for the procedure outlined in R.S.1925, arts. 6703 and 6705, to have been followed in this instance, since it seems to have been held that they have no application to a public road or crossing that has not been originally laid out and located by a jury of view, as the undisputed facts recited show was not the case here.'

For this additional reason, we sustain the 'no' evidence point as to Special Issue No. 4 finding that Joe's Lake Road was a 'County Road' at the time its passage was blocked by the acts of Southwestern in erecting the gates across it.

JOE'S LAKE ROAD

The parties are in substantial agreement as to the location of the road. Generally speaking, the road begins on State Highway 92 (the Spurger-Silsbee Highway) at a point near Ben Jack Phillip's store and the County Barn, located in the V. Weiss Survey; thence it meanders in generally an east to east-northeasterly direction through the Weiss Survey onto the Sterne League; thence in a southeasterly...