Fazzino v. Guido, 01-91-00041-CV

• Decision Date: 16 July 1992
• Docket Number: No. 01-91-00041-CV,01-91-00041-CV
• Citation: 836 S.W.2d 271
• Parties: John FAZZINO, Appellant, v. Antoinette V. GUIDO, Joe C. Patranella, Josephine P. Patranella, Mrs. Frank L. Salvato a/k/a Mrs. Gussie Salvato, Mary Salvato Bush, Josephine Salvato Varisco, Ethelena Salvato Zubik, Marie Angonia, Lucille Varisco, Dorothy V. Donaho, Mudville Gin Company, Lula Mae Perrone, Margaret C. Curtis, Mrs. Lee J. Court, Don Angonia, Victor Canavespi, Betty Lee Canavespi Sprague, and Frances Falsone Reistino, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 271

836 S.W.2d 271

John FAZZINO, Appellant, v. Antoinette V. GUIDO, Joe C. Patranella, Josephine P.

Patranella, Mrs. Frank L. Salvato a/k/a Mrs. Gussie Salvato,

Mary Salvato Bush, Josephine Salvato Varisco, Ethelena

Salvato Zubik, Marie Angonia, Lucille Varisco, Dorothy V.

Donaho, Mudville Gin Company, Lula Mae Perrone, Margaret C.

Curtis, Mrs. Lee J. Court, Don Angonia, Victor Canavespi,

Betty Lee Canavespi Sprague, and Frances Falsone Reistino, Appellees.

No. 01-91-00041-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

July 16, 1992.

Rehearing Denied Aug. 31, 1992.

C. Randall Michel, Houston, for appellant.

Bill Youngkin, Houston, for appellees.

Before DUGGAN, MIRABAL and WILSON, JJ.

OPINION

WILSON, Justice.

Appellant, John Fazzino, appeals from a judgment entered below following a jury verdict in which a roadway bordering and/or on appellant's property was found to be dedicated for the benefit of the general public. The trial court also ordered that appellant remove any impediment placed in the roadway within his property lines. We affirm.

The roadway in question is a dirt road varying from 10 to 23 1/2 feet in width. The road runs on and along the property lines of appellant and his neighbors. A number of appellees, all of whom are neighbors of appellant, currently use this road, and have done so for a number of years. The road is referred to by the local residents as "Mudville Road," but it is not mentioned in the legend of the list of county roads, and there are no identifying street signs.

The dispute arose when appellant plowed into the portion of the roadway on his property. Appellant's actions made the road impassable. In response to his plowing the roadway, 19 of his neighbors, appellees, filed suit seeking an injunction to halt appellant from treating the road as his private property. The trial resulted in a jury verdict that determined appellant's actions were improper because the road had been dedicated for the benefit of the public. The trial court entered judgment on this jury verdict. Based on his belief that the roadway is his private property and had not been dedicated for public use, appellant now appeals from the trial court's judgment formalizing the jury's decision.

In his first two points of error, appellant claims that there was no evidence, or in the alternative, the evidence was legally and factually insufficient to support the judgment finding the road to have been dedicated. In reviewing a no evidence or legal insufficiency point, the reviewing court must consider only the evidence tending to support the jury finding. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988). When reviewing a claim of factual insufficiency, an appellate court should set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The evidence at trial reflects that the predecessors in title to appellant's and appellees' land originally established Mudville Road for the public and themselves to use to reach a ferry that crossed the Brazos River. This ferry was in existence at this location as early as 1828.

A number of witnesses testified that they and the public had used the road for over 60 years. Luke Scamardo, the oldest witness to testify at 94 years of age, said that he had farmed in the area as early as 1925. He further stated that at that time the road was travelled by all the farmers in the area. Margaret Curtis, who was born in the area in 1928, testified that during her childhood her father used the road to haul cotton. She also said that she and her husband operated a business from 1950 through 1963, and that the general public would use Mudville Road to reach the business. Josephine Patranella, 72 years of age, testified that she was born on a tract adjacent to the road. She stated that during her entire lifetime her family and other landowners in the area used Mudville Road. Another resident, Mr. Angonia, testified that the general public used the road to go to the Brazos River. He also said that the general public used it more than the farmers in the area. Thus, the evidence at trial clearly shows that Mudville Road has been used by the public as far back as 1925, and quite possibly as early as 1828. There was no evidence of any objection to the use of the road by anyone until appellant, who purchased the property in 1959, plowed into it in 1988.

The issue in this case is whether the evidence of the long and continued use of Mudville Road is sufficient to prove that it had been dedicated to the public by appellant's predecessors in interest. Dedication occurs when a landowner sets apart his land for public use. Ford v. Moren, 592 S.W.2d 385, 390 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.). Dedication can occur expressly or impliedly. Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex.1978). In the present case, appellees have maintained that appellant's predecessors in title impliedly dedicated the roadway, as is evidenced by the unobjected to use of the road by the general public for a number of years. Whether a road has been dedicated for public use is a question of fact. Broussard v. Jablecki, 792 S.W.2d 535, 537 (Tex.App.--Houston [1st Dist.] 1990, no writ).

In his defense, appellant correctly asserts the general rule in these cases, which is that an owner's donative intent may not be implied from evidence that shows only that the public used the land for a long time without objection from the landowner. Barstow v. State, 742 S.W.2d 495, 506 (Tex.App.--Austin 1987, writ denied). However, appellant has failed to take into account the corollary to the general rule, which states that evidence of long and continued use by the public raises a presumption of dedication by the owner when the origin of the public use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time. Id. at 507. For this corollary to apply, the origin of the public use and the ownership at that time must be "shrouded in obscurity, and no proof can be adduced showing the intention of the owner in allowing the use." Dunn v. Deussen, 268 S.W.2d 266, 269 (Tex.Civ.App.--Fort Worth 1954, writ ref'd n.r.e.).

This corollary applies to the present case. All of the landowners who testified said that the road was used by the public as far back as they could remember. None of the landowners could testify to the intentions of the owner when such use began. In fact, there was some evidence indicating that the road may have been used by the public as early as 1828 to reach the ferry at the Brazos River. Based on these facts, it is clear that the origin of the use of the road cannot be shown due to lapse of time. Consequently, the jury's verdict that an implied dedication of Mudville Road had occurred during ownership of the land by appellant's predecessors in title is not so against the great weight and preponderance of the evidence as to be clearly unfair and unjust. Appellant's points of error one and two are overruled.

In his third point of error, appellant asserts that there is no evidence, or in the alternative, insufficient evidence to support the finding that the roadway serves a public purpose. However, the evidence at trial showed that the public did in fact use the road, as was discussed in the first two points of error. For example, Don Angonia testified that the public probably used the road more than the farmers in the area to reach the Brazos River. Therefore, appellant cannot substantiate his claim that the public is not served by the roadway. Based upon the testimony at trial, it was not against the great weight and preponderance of the evidence for the jury to find that the road served a public purpose. Appellant's third point of error is overruled.

In his fourth point of error, appellant argues that Mudville Road cannot be a public road because any use by the public has been abandoned as a matter of law. Appellant did not plead abandonment, nor did he request a jury question on it. The failure to plead abandonment, an affirmative defense, results in its waiver. San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 344 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.). Therefore, appellant has failed to properly preserve this issue.

Even if appellant had preserved this issue, his argument would not be meritorious. In reviewing a "matter of law" challenge, an appellate court first examines the record for evidence that supports the finding, while ignoring all evidence to the contrary. Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex.1982). If there is no evidence to support the finding, the reviewing court then examines the entire record to determine if the contrary position is established as a matter of law. Id.

In reviewing the record, it is clear that the road has not been abandoned as a matter of law. To prove an abandonment, appellant must prove that there was an intent to abandon the public roadway, and the intention must be shown by clear and satisfactory evidence. San Jacinto Sand Co., 426 S.W.2d at 344. Appellant bases his claim of abandonment on the fact that the road no longer extends all the way to the Brazos River, but terminates 1,500 to 2,000 feet from the river, and that there is a locked gate between where the road terminates and the river.

Appellees concede that the road is no longer used as a travelway to the ferry to cross the Brazos River. Nonetheless, the road is still being used by the public to go to the Brazos River. Don Angonia testified that he believed that the road was used more by the general public than the farmers in the area. Another witness who lives in the area, Tony Varisco, testified that he and other people use the roadway. Josephine Patranella testified that 18 families use the road, and that for some of them...