Henderson v. Frio County

• Decision Date: 31 October 1962
• Docket Number: No. 13999,13999
• Citation: 362 S.W.2d 406
• Parties: Mrs. M. F. HENDERSON et al., Appellants, v. FRIO COUNTY et al., Appellees.
• Court: Texas Court of Appeals

Page 406

362 S.W.2d 406

Mrs. M. F. HENDERSON et al., Appellants, v. FRIO COUNTY et al., Appellees.

No. 13999.

Court of Civil Appeals of Texas, San Antonio.

Oct. 31, 1962.

Rehearing Denied Nov. 28, 1962.

House, Mercer, House & Brock, San Antonio, John G. Murray, Pearsall, for appellant.

J. B. Ator, Pearsall, for appellee.

BARROW, Justice.

This suit was filed by appellees, Frio County and three residents of that County, to enjoin interference with public right of ingress and egress on an alleged public road known as the Hardy-Brown Road. This roadway is located across a farm formerly owned by A. C. Hardy, but now owned by appellants, Mrs. M. F. Henderson and two others. Plaintiffs alleged that the road became public by dedication by Hardy in 1924 or 1925, and that since that time the public generally has used the road openly, adversely and continuously, and has thereby acquired prescriptive rights. The jury returned a verdict favorable to plaintiffs on both counts and defendants have duly perfected this appeal from the judgment entered on said verdict.

Appellants assert that appellees failed to make out a case on either count and, further, that the trial court committed errors which would require a new trial. The evidence is undisputed that Hardy grubbed out the roadway in 1925, and since that time it has remained open and been used by the public generally. Appellants assert that this use was merely a permissive use rather than an adverse use.

It is our view that the findings of the jury that A. C. Hardy dedicated the roadway as a public road in 1925, and that this dedication was accepted by the public, are amply supported by the evidence. The Supreme Court in O'Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, set forth the requirements of a dedication to the public, in disposing of a similar point. The evidence showed that the roadway had been in existence for over sixty-eight years and that the community, without asking, had used it as a public road. The Court held that this evidence supported a finding of implied dedication as a public road. The Supreme Court again cited with approval the rule that the act of throwing open property to public use, without any other formality, is sufficient to establish the fact of the dedication to the public. Other authorities which support a finding of dedication upon evidence equivalent to that introduced by appellees, are: Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957; Smith v. Wilson County, Tex.Civ.App., 356 S.W.2d 221 (dism.); Dunn v. Deussen, Tex.Civ.App., 268 S.W.2d 266 (ref. n. r. e.).

Desmond Rumfield testified that prior to 1925 he ran a general store in this immediate area. It was necessary for Hardy and his neighbor, Brown, to pick up their mail at the store. In order to secure mail delivery to them, they grubbed out and opened the roadway in question. This was confirmed by the rural mail carrier who had used the road for over twenty-five years. In response to cross-examination by appellants' counsel, Rumfield testified that Hardy and Brown said, 'If we can make a public road out of it and get the mail to go around there we won't have to go down to the store after our mail and we can put our boxes all up here.' Rumfield also testified that school busses had used the roadway since 1925, as well as the mail carrier.

Eight other witnesses testified on behalf of appellees that they had been personally acquainted with the roadway since 1925, and that the roadway had been used by the public generally all that time. In addition, three witnesses had used it as a public road for over twenty years. Hardy did not at any time object to this use, and no permission was ever sought by anyone for use of the road. The evidence further established that for many years the county had done the maintenance work on the road. Hardy died in 1946 and the appellants acquired title in 1950. Appellants introduced no evidence to contradict this general use of the roadway by the public over this long period of time, but assert that it was merely a permissive use rather than a dedicated or prescriptive right.

Appellants urge error in the charge of the court. Special Issue No. 1 read as follows: 'Do you find from a preponderance of the evidence that the road in question across the Henderson land as described in Plaintiffs' exhibit No. 1 was dedicated as a public road by A. C. Hardy, the owner, prior to his death? Answer 'yes' or 'no'.' Appellants objected to this form of inquiry in that it limited the jury's answer to whether or not the roadway was a 'public road' and did not permit the jury to answer that same was a 'licensed' or 'permitted road.' We overrule these points. Appellees plead that the roadway was a 'public road' and the burden of proof was upon them to establish this fact. They did not have the burden of proof to show that the road was not something else. McDonald, Texas Civil Practice, Sec. 12.06; Wichita Falls & O. R. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

Appellants further assert that the definition of the term 'dedicated as a public road' did not place proper degree of proof upon appellees. The trial court gave this definition: "Dedicated as a public road' as used herein means devoted or appropriated to public use as a public road by the owner, by...