Gutierrez v. County of Zapata, 04-95-00720-CV

• Decision Date: 13 August 1997
• Docket Number: No. 04-95-00720-CV,04-95-00720-CV
• Citation: 951 S.W.2d 831
• Parties: Alicia Emma R. GUTIERREZ, Appellant, v. The COUNTY OF ZAPATA, Appellee.
• Court: Texas Court of Appeals

Page 831

951 S.W.2d 831

Alicia Emma R. GUTIERREZ, Appellant, v. The COUNTY OF ZAPATA, Appellee.

No. 04-95-00720-CV.

Court of Appeals of Texas San Antonio.

Aug. 13, 1997.

Luciano Adrian Rodriguez, Zapata, for Appellant.

Peter L. Kilpatrick,Jeffers & Banack Incorporated, Kenneth L. Malone, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, for Appellee.

Before LOPEZ, STONE and ANTONIO G. CANTU ¹, JJ.

ANTONIO G. CANTU, Justice (Assigned).

On May 24, 1993, suit was instituted by appellee, County of Zapata ("County") against Alicia Emma Ramos Gutierrez ("Gutierrez"), appellant, to enjoin interference with the public's right of ingress and egress over a portion of an alleged public road known as "Los Lobos Road." Subsequently, the County amended its petition to seek further relief by way of declaration that the alleged portion of the road was a public road as a result of an express or implied dedication by Gutierrez's predecessor in title.

The County alleged that the road was created in 1924 by virtue of a dedication of a rural community road by the adjoining landowners and that it was used continuously by the general public with the unqualified acquiescence of the landowners until sometime in the 1950s.

The County further alleged that Gutierrez's predecessor, Crisoforo R. Ramos ("Crisoforo"), rededicated the portion of the road in controversy which traversed his property when he requested the county officials to reroute a portion of the road across his property in a zigzag manner in order to maximize agricultural use of his property.

The County also alleged that, since at least 1953, the road has been used by the general public and maintained and improved by the County by installing cattle guards and road hazard signs. According to the County, the road, which runs directly from U.S. Highway 83 to areas fronting Falcon Lake, allegedly has provided access to public areas, including trailer parks, for decades, and that the road has also provided, for a number of years, ingress and egress to numerous oil and gas operators on adjacent properties fronting the road.

A jury returned a unanimous verdict finding that the road was expressly and impliedly dedicated. The trial court entered its judgment granting declaratory relief, awarding attorney fees and permanently enjoining Gutierrez from blocking the road. Gutierrez has duly perfected her appeal from the judgment entered on the verdict.

In three points of error, Gutierrez alleges trial court error in the court's charge to the jury. In a fourth point of error, she challenges the legal and factual sufficiency of the evidence to support the jury findings. We address the sufficiency challenges first.

Gutierrez alleges that "there is no evidence to support the verdict, or, in the alternative, the evidence is legally and factually insufficient to support the verdict that the road is a public road," and "the verdict is contrary to the great weight and preponderance of the evidence as to be unjust."

STANDARD OF REVIEW

A complaint that a jury finding is not supported by any evidence requires consideration of only the evidence and its inferences that favor the finding. The finding below must be upheld if any evidence of probative force exists in the record to support it. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988); Lindner v. Hill, 691 S.W.2d 590, 592 (Tex.1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

A complaint that the evidence is factually insufficient to support the jury finding requires that we consider and weigh all the evidence. We may 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); see Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980).

We will review and weigh the evidence according to these standards.

FACTS

The evidence established that Gutierrez is the owner of lands traversed by an unpaved road five miles long commonly known as the "Los Lobos Road" but also referred to as the "Old Falcon Road" and "Los Indios Road". The road was established in 1926 as a partition road for the use and benefit of the landowners who were awarded lands under a judicial partition of porciones ² 14, 15 and 16 in Zapata County.

The road was originally laid out in a straight line from beginning to end and bisected Crisoforo's cultivated lands, or according to some was contemplated as a straight road but never laid out as such, it having been laid out in its present condition.

There is some evidence that during the time of the condemnation of lands by the federal government for the construction of Lake Falcon Reservoir, about 1954, Crisoforo sought a deviation in the original route of the partition road to either move the road from the proposed condemnation or to circumvent an agricultural field owned by him. The road was rerouted either by Crisoforo himself or by the County at his request. The result was a zig zag in the portion of the road running through Crisoforo's land. From the 1950s up to 1981, either Crisoforo or his son, Antonio Ramos (Antonio), owned all the land underlying the zig zag portion of the road in controversy. Gutierrez, as daughter of Antonio and granddaughter of Crisoforo, is indisputably the owner of the lands containing the zig zag portion of the road in controversy.

During the period between 1954 and 1981, the County periodically maintained and improved the road, sometimes with the full knowledge of Gutierrez's predecessors and oftentimes at their request. Besides installing cattle guards and road hazard signs, the County built several bridges and installed speed bumps and occasionally graded the road. The road was never gated or closed off at any point by any of the landowners nor by Gutierrez's predecessors. The public, in general, traveled along the route of the road without objection by anyone and without securing anyone's permission. At times the road was delineated by fencing on both sides along various portions of the road. Telephone lines were erected which tracked the road giving the appearance of a normal public road. Power lines and water lines belonging to the Falcon Rural Water Supply were erected and still exist along the roadway.

During the 1950s and thereafter through 1981, the road became heavily trafficked by persons in the oil and gas, ranching and fishing industries. A school bus route was established over the road at one time and the sheriff's office occasionally patrolled the road.

During the 1960s, a trailer park and fishing camp opened up at the terminus of the road fronting Falcon Lake that seasonably attracted numerous "snow birds" who spent the winter as temporary residents of the area. These visitors increased traffic considerably and required the County to remove previously installed speed bumps to avoid damaging the ever-increasing number of recreational vehicles and trailers. Cabins were also erected fronting the lake which catered to fishermen.

The inundation of the old town of Falcon by the construction of the Falcon Lake Reservoir created an attraction that periodically brought tourists and visitors to the area, as well as former residents of the old town, to view the exposed ruins of the townsite and to reminisce during periods of drought, when the old town was temporarily exposed. Because the road originally led into the town of Old Falcon, the road was a natural route for such purpose.

In short, the road was continuously used, at will, by oil field and ranch workers, fishermen, tourists, sightseers, strangers, trailer park patrons, visitors, residents, school buses, public utilities, the fire department and sheriff's department, county maintenance vehicles, and the highway department.

David Morales, a former county commissioner in whose precinct the road is located, testified that he lived in the area all his life (55 years), and that he had served as a commissioner from 1980 through 1994 and as an appointed county judge in 1994. He recalled using the road during the 1950s to gain access to Falcon Lake and to deliver oil field equipment in his line of business. He remembered heavy traffic on the road during the 1960s as a result of the oil and gas industry and the fishing industry. The road has been maintained by the county since he took office.

James Wolfe, who has lived at the terminus of Los Lobos Road ³ since 1962, operated his trailer park and fishing camp business on his property since 1968. He purchased the property at a government auction following the creation of the reservoir with a representation by the government auctioneer that it was accessible by a public road identified at trial as the road in controversy on a map received by him. He recalled inquiring of the County about maintenance of the road and being told that, although the road was not a county road ⁴, it was being maintained by the County. He recalled being fined once by the County for removing a speed bump on the road because it was a deterrent to his business and out of concern for his tenants' trailers and recreational vehicles. Wolfe rents trailer spaces by the day, the week, the month, and the year. He has had tenants who have remained residents of his park for twenty years. ⁵ Throughout the years he has noticed school buses moving up and down the road, as well as county maintenance equipment.

Wolfe remembered meeting Crisoforo and conversing with him in sign language because neither spoke the other's language. He recalled Crisoforo being extremely friendly, who often times helped motorists who had run off the road by pulling them free with his tractors. Wolfe also knew Antonio and attended several parties at his house. The status of the road was never discussed with either Crisoforo or Antonio.

Eduardo Yzaguirre, an attorney, testified that his mother owns property fronting the Los Lobos Road and that he has been...