Lindner v. Hill

• Citation: 673 S.W.2d 611
• Decision Date: 25 April 1984
• Docket Number: No. 04-83-00328-CV,04-83-00328-CV
• Parties: Harvey LINDNER, et ux., Appellants, v. Frank Y. HILL, Jr., et al., Appellees.
• Court: Court of Appeals of Texas

Page 611

673 S.W.2d 611

Harvey LINDNER, et ux., Appellants, v. Frank Y. HILL, Jr., et al., Appellees.

No. 04-83-00328-CV.

Court of Appeals of Texas,

San Antonio.

April 25, 1984.

Rehearing Denied May 21, 1984.

Chilton Maverick, San Antonio, for appellants.

Frank Y. Hill, Boerne, for appellees.

Before BUTTS, REEVES, TIJERINA, JJ.

OPINION

BUTTS, Justice.

Plaintiffs appeal from a judgment declaring that Lindner Road is a public road under the doctrine of implied dedication. Plaintiffs Harvey Lindner and his wife Ruth are the present owners of the 1,528 acre ranch through which Lindner Road passes in an east-west direction for a distance of 1.3 miles. During the trial, plaintiffs, Harvey and Ruth, without objection, amended their petition to include their sons, Mark and Steven, as plaintiffs. Defendants are Frank Y. Hill, Jr., county attorney of Kendall County, William R. Whitworth, Kendall county judge, and members of the Kendall County Commissioner's court. We affirm.

Herman Lindner, Harvey's grandfather, first built Lindner Road and constructed Holiday School (at the intersection of Lindner and Holiday roads) in the late nineteenth century with the help of some neighbors. The record does not indicate when Herman died. At his death, however, his son, Hubert Lindner, Harvey's father, owned the ranch until his death in 1947. Hubert died intestate and his three heirs were his wife Emmie, his son Harvey, and his daughter Odedda Murff. Harvey purchased his sister's undivided one-fourth interest in 1961, executing a $5,000.00 vendor's lien note. At Emmie's death in 1970, she bequeathed Harvey a life estate in the ranch, remainder to her grandsons, Mark and Steven. ¹ Together, the plaintiffs in this suit have the only property interest in the ranch where the road is located.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

New subdivisions have sprung up in the area and Harvey testified that he has recently experienced problems with garbage dumped at the side of the road and hunting from the road. Plaintiffs closed Lindner Road by locking its four gates in June of 1982. These gates had been closed from time to time, but they had never been locked. In August 1982, Frank Hill, county attorney, wrote a letter to Harvey threatening criminal action unless the gates to Lindner Road, which he stated was a public road, were unlocked. Harvey unlocked the gates, but took legal action by alternatively pleading for (1) a declaratory judgment that Lindner Road is a private road, (2) injunctive relief to prevent the Commissioner's Court from interfering with plaintiffs' sole use of the roadway, and (3) quieting of plaintiffs' title to Lindner Road.

Trial was before the court without a jury. The trial court filed findings of fact and conclusions of law:

1. FINDINGS OF FACT

A. The road in controversy, referred to as "Lindner Road," traverses Plaintiffs' property in a generally East-West direction a distance of 1.3 miles. To the east of Plaintiffs' property, it intersects "Holiday Road," which is admittedly a county road and which leads to the Town of Comfort. To the west of Plaintiffs' property, it intersects a road referred to as "Herman Sons Road" or "Mill-Dam Road," which is admittedly a county road and which leads to and intersects with a county road designated "Skyline Drive", and State Highway No. 27.

B. "Lindner Road" was established by Plaintiffs' predecessor in title, Herman Lindner, in the late 1880's or early 1890's to provide access by the residents of the community to "Holiday Road" and Holiday School, which was located for approximately 60 years near the intersection of "Lindner Road" and "Holiday Road," and has been open to and used by the public from the east and west of Plaintiffs' property since the 1930's.

C. Although never fenced, "Lindner Road" is clearly defined and there is no evidence of any change in its location, width or course since being established.

D. Gates have existed across "Lindner Road" since 1949, at the latest, with the consent and acquiescence of Plaintiffs, and prior to that time, it was maintained by residents of the community.

E. Kendall County has repaired and maintained "Lindner Road" since 1949, at the latest, with the consent and acquiescence of Plaintiffs, and prior to that time, it was maintained by residents of the community.

F. "Lindner Road" has been open to and used by the public generally since the early 1900's without interruption and without obtaining permission. When there is flooding on other roads in the area, "Lindner Road" provides the only access for some members of the public to the Herman Sons Home and Camp, and the Baptist Camp.

G. Plaintiffs and their predecessors in title have used "Lindner Road" in common with the public.

H. In the late 1960's, a county road know [sic] as "Skyline Drive" was established which intersects "Holiday Road" approximately 2.5 miles north of Plaintiffs' Property. "Skyline Drive" is narrow and poorly maintained, has steep grades, becomes impassable in wet weather and is hazardous for use by school buses and emergency vehicles.

I. On October 10, 1949, the Commissioner's Court of Kendall County entered an Order, of record in Volume 7, Page 184, Commissioners' Court Minutes of Kendall County, purporting to establish "Lindner Road" as a third-class county road. Neither Plaintiffs nor their predecessors in title applied to the Commissioners' Court for such action. Although Plaintiff Harvey Lindner owned an undivided interest in the property upon which the road is located, he was given no notice of the application or of any proceedings of the Commissioners' Court in regard thereto, and he received no compensation for the taking of the road. Plaintiff Harvey Lindner had no actual knowledge of the Commissioners' Court Order until August, 1982.

II. CONCLUSIONS OF LAW

A. The Commissioners' Court Order of October 10, 1949, purporting to establish the road as a third-class county road is void for want of jurisdiction as to Plaintiff Harvey Lindner because said Plaintiff was given no notice of the proceedings incident thereto.

B. Because Plaintiffs and their predecessors in title used the road in common with members of the public, the use of the road by the public was permissive and not adverse, as a matter of law, and no public easement by prescription matured.

C. For the following reasons, the road is impliedly dedicated to public use.

1. For a period of at least 50 years, Plaintiffs and their predecessors in title threw open the road to public use.

2. For a period of at least 50 years, the road has been used by the public without interruption and not by mere permission.

3. The road has the reputation of being a public road.

4. The road has been maintained by the County with the consent and acquiescence of Plaintiffs for a period of more than 30 years.

5. The public will be injured if the road is closed.

6. The use of the road has not been limited to a particular class of persons.

7. The appropriation of the road to the public has been accepted by public use thereof.

8. Plaintiffs and their predecessors in title kept the gates unlocked for approximately 40 years.

D. Article 6812h, V.A.C.S., should not be given retrospective application because, to do so, would destroy a vested substantive right of the public. [Citations omitted].

When findings of fact and conclusions of law are filed in conjunction with a statement of facts these findings will be sustained if there is any evidence to support them. Gulf Freeway Lumber Co. v. Houston Investment Realty Trust, 452 S.W.2d 39, 43 (Tex.Civ.App.--Houston [14th Dist.] 1970, no writ); 4 R. McDONALD, TEXAS CIVIL PRACTICE § 16.10 (rev.1971). Such findings are equivalent to a jury verdict on special issues, and should not be disturbed upon appeal if they are supported by competent evidence, unless they appear to be against the preponderance of the evidence. Houston Natural Gas Corp. v. Pearce, 311 S.W.2d 899, 903 (Tex.Civ.App.--Houston 1958, writ ref'd n.r.e.); R. McDONALD, supra at § 16.05.

Plaintiffs raise ten points of error. In points of error one through eight, plaintiffs specifically challenge the trial court's findings of fact and conclusions of law. Since the trial judge ruled out prescriptive easement (Findings of Fact F and G) in his findings and appellees do not raise this as a cross-point on appeal, we decline to discuss it. Rather, we focus our attention on the legal and factual sufficiency of the evidence to sustain the judgment that Lindner Road was impliedly dedicated.

Defendants correctly note that many of the points of error attacking the findings of fact do not assail the evidence as failing to support those findings. However, in the interest of clarity regarding the requirements of dedication and because two assignments do question the evidence, we will address the arguments as if they all assert insufficiency of the evidence. We will look at the legal and factual sufficiency to support the trial court's findings of fact. In the tenth point of error, plaintiffs contend that the doctrine of implied dedication permits a taking without compensation. Since this last argument is raised for the first time on appeal, we do not discuss it. Wright v. Allstate Insurance Co., 285 S.W.2d 376, 380 (Tex.Civ.App.--Dallas 1955, writ ref'd n.r.e.).

In point of error nine plaintiffs argue the implied dedication is barred. TEX.REV.CIV.STAT.ANN. art. 6812h (Vernon Supp.1984) provides:

Art. 6812h. Private roads; acquisition of public interest in counties of 50,000 or less

Definition

Section 1. In this Act, "dedication" means the explicit, written communication to the commissioners court of the county in which the land is located of a voluntary grant of the use of a private road for public purposes.

Public interest

Sec. 2. (a) A county may not establish, acquire, or receive any public interest in a private road except under the following circumstances: (1...