Hill Farm, Inc. v. Hill County

• Decision Date: 21 February 1968
• Docket Number: No. 4688,4688
• Citation: 425 S.W.2d 414
• Parties: HILL FARM, INC., Appellant, v. HILL COUNTY, Texas, Appellee. . Waco
• Court: Texas Court of Appeals

Page 414

425 S.W.2d 414

HILL FARM, INC., Appellant, v. HILL COUNTY, Texas, Appellee.

No. 4688.

Court of Civil Appeals of Texas Waco.

Feb. 21, 1968.

Rehearing Denied March 14, 1968.

Beard & Kultgen, Pat Beard, Waco, for appellant.

Betty Dohoney, Hillsboro, for appellee.

OPINION

WILSON, Justice.

Summary judgment was rendered requiring appellant to remove a pipeline from the right-of-way of a public county road. The petition for mandatory injunction on behalf of Hill County alleged appellant, without legal right, dug a ditch in a described right-of-way within which it laid and maintained the line, refusing to remove it. Appellant answered that the line was laid 'with the oral consent of the County Commissioner of the precinct'; that the County had waived the right to object to its location, and is estopped to assert it is not legally located.

In response to the County's request for admissions, appellant admitted that it was maintaining the pipeline within the tract described, referred to as a part of the Old Patton Lake Road. It answered that it could neither admit nor deny that the described portion of the Old Patton Lake Road was a public county road because this would be a legal conclusion, and denied that its pipeline was within 8 to 10 feet of the center of the right-of-way.

On motion of the County asserting that the latter and other answers to its requests for admission were evasive, and that they failed to comply with the requirements of Rule 169, Texas Rules of Civil Procedure, the trial court ordered those matters to be deemed admitted. Affidavits showing prolonged public use of the tract and its continued maintenance and exclusive possession by Hill County accompanied appellee's motion for summary judgment, as well as the affidavit of the County Surveyor with his plat showing that the pipeline was within the road right-of-way, and 9.5 feet from its center.

Appellant urges that the injunction is not justified because the County did not show the pipeline interfered with maintenance or use of the road. To support its argument it relies on decisions which announce the correlative rights of abutting owners of the fee. Appellant is not the fee owner, under the undisputed record and applicable presumptions concerning the abutters' fee title extending to the center of the road; and as appellee's counsel points out, these cases are not applicable to one who is not seized of the servient estate and who has encroached upon or appropriated to private use land dedicated and devoted to use of the public. When Hill County established its right as trustee for the public, the easement, and ownership of the fee in abutting owners other than appellant, an attempted assumption by the latter of the status or rights of freeholder or owner of the fee is unwarranted. Appellant's pleaded claim of right was restricted to oral permission requested by it from a single commissioner, and the affidavit it filed confirmed the extent and derivation of its claimed right of occupancy.

It is insisted by appellant that although actual right-of-way obstructions are nuisances per se, and although it concedes such nuisances may be abated, there is no showing here of damage or interference with maintenance or public use, and hence no ground for abatement of its encroachment as a nuisance. This premise is untenable, and the abatement of nuisance cases relied on are inapposite simply because appellee is not seeking to abate a nuisance. The County has not alleged existence of a nuisance, and whether appellant's pipeline constitutes a nuisance is not of consequence. This is not an element of the County's cause of action .

The County has asserted a common law purpresture by appellant. A purpresture is the appropriation to private use of that which belongs to the public; an invasion of the right in the soil while the same remains in the people; the making serviceable by one to himself of that which belongs to many; an encroachment upon rights belonging to the public. 35A Words and Phrases, perm. ed., Purpresture p. 330. Sir Edward Coke defined purpresture as an encroachment by one which 'makes several to himself that which ought to be common to many'. Coke, Litt., 277b. See 4 Blackstone, Comm., 197. While a purpresture may be a public nuisance, it is not necessarily so. It becomes a nuisance when the right of the public to immediate actual use is affected. 10 McQuillin, Municipal Corporations, 3d ed. rev., Sec. 30.73, p. 807. The County is not relegated to establishing a nuisance.

'Inconvenience of the public, or the sufficiency of the remainder of the street for public uses, is immaterial on the question of abating a purpresture in a street in proceedings by the public'. 25 Am.Jur., Highways, p. 628.

See Blount, Nomolexicon (1670); Cowell's Interpreter (1672); 5 Jacobs, Law Dictionary, 2417 (Phila., 1811); I Reeves, Hist. of English Law 125 (1783); Black's Law Dictionary, 4th ed. 1401; Ballentine's Law Dictionary, 2d ed. 1048.

The distinction between the elements of nuisance and purpresture was recognized in Texas as early as 1888 when Justice Gaines wrote in State v. Goodnight, 70 Tex. 682, 11 S.W. 119: "A purpresture strictly is an encroachment upon a public right in lands or navigable streams that does not operate as an obstruction or injury to individual members of the public, but only to some right incident and peculiar to it in its aggregate capacity as such."

By Art. 2351, Vernon's Ann.Civ.Stat., commissioners' courts are required to exercise general control over roads in the county. In the discharge of such duty they are trustees of the public county roads for the whole public. Panhandle & S.F. Ry. Co. v. Hurst, Tex.Civ.App., 251 S.W. 538, 541; Franklin County v. Huff, 43 Tex.Civ .App. 355, 95 S.W. 41, 42; 25 Am.Jur., Highways, Sec. 133, p. 428, I Elliott, Roads and Streets, 2d ed., Sec. 532, p. 597. 'The governmental corporation which represents the public must have the right to vindicate and protect the interests of the public for whom it is trustee', and a county is authorized 'to maintain a strictly possessory action to vindicate and protect the title of the public to its easement'. I Elliott, above, Secs. 532, 533, pp. 596, 597.

Absent legislative authorization, 'the right of a citizen other than the owner of the fee in a suburban road is to use it for travel', which 'excludes a private citizen other than the owner of the servient estate from any use of the road except for travel. If he makes permanent use of it for any other purpose he is a wrongdoer . His rights are much more limited than those to whom the law has committed the care and control of the road.' I Elliott, Roads and Streets, 2d ed., Sec. 500, p. 563.

The county's right and duty as trustee for the public in an easement for road purposes extends below the surface of the right-of-way, I Elliott, Roads and Streets, 2d ed., Secs. 492--494, pp. 557, 559; Dozier v. City of Austin, Tex.Civ.App., 253 S.W. 554, 556; and the public's easement includes the right to lay water lines, 39 C.J.S. Highways § 139, p. 1078.

The general rule governing the power of the governmental corporation as trustee concerning purprestures (as distinguished from nuisances) is stated in 10 McQuillin, Municipal Corporations, 3d ed. rev., Sec. 30.73: 'A purpresture is an unauthorized appropriation for private or individual purposes, among others, of a public right of way'; and 'Of course, such obstructions may be removed; nor is the measure of inconvenience of the public a proper subject of inquiry,' since 'streets are intended for the common and equal use of all citizens; and appropriation of them to private and individual uses, from which the public derives no benefit or accommodation, is a perversion of them from their lawful purposes, contrary to the trust imposed in the municipal authorities.'

Concerning purprestures of the present nature, it is said in 25 Am .Jur., Highways, Sec. 137, p. 435 that one who without a grant from the proper authorities constructs a pipeline in the highway is a trespasser, as is any person who is on the ground 'for a purpose other than that of using it...