Mitchell v. Bass

• Decision Date: 01 January 1870
• Citation: 33 Tex. 259
• Parties: ELI MITCHELL v. A. T. BASS.
• Court: Texas Supreme Court

33 Tex. 259

ELI MITCHELL

v.A. T. BASS.

Supreme Court of Texas.

1870.

1. According to the civil law a grant of land calling for a public road as a boundary conveyed no title to the soil covered by the road; the title to the road bed remained in the sovereignty, and on the abandonment of the road as a highway the land covered by it became vacant public domain, subject to entry, and did not belong, as it would at common law, to proprietors whose lands were bounded by the road.

APPEAL from Gonzales. Tried below before the Hon. J. J. Holt.

The facts of this case will be found in 26 Tex. 372, in the report upon a former trial by this court.

A. N. Mills, for the appellant. It is admitted on all sides, at the common law of England, upon the discontinuance of a highway, the soil and freehold pass to adjacent owners; and under that system, the plaintiff cannot maintain ejectment or trespass against an adjacent owner. But as these grants were extended anterior to the introduction of the common law, it is supposed that the rights of adjacent owners are controlled by the civil law, and that under that code the freehold of a discontinued highway or public road, still remains in the public and does not inure to adjacent owners. To show merely that such a proposition has heretofore been advanced, this court, in a former unpublished opinion, ______ term, 186--, at Austin, cite 3 Kent, p. 558, note, 9 ed., and Renthorp v. Bourg, 4 Mart. 97; and Kent cites the same case in 4 Mart. and also Dig. of Justinian, 43, 812, § 21, in support of his opinion. We can concede, without danger, the general rule of the civil law as laid down in 4 Mart. as applied to highways in use and not discontinued. The statement of that case by the judge shows the highway was then, and had been, constantly used as a public road for travelers and driving cattle, from two parishes in Louisiana to the Mississippi river. No one can read the opinion in Renthorp's case without concluding that the Roman law solely influenced the court in deciding the question; and it was therein asserted the same rule, by adoption, prevailed in France, citing Denisart verbo Chemin; and in Spain, 3 Partida, tit. 28, l. 6. Now, without denying the principle laid down by the above ancient Roman and Spanish authorities, it becomes necessary to inquire what class of public highways they alluded to. The consular or public highways of ancient Rome and los caminos publicos of Hispania, built almost numberless centuries ago, were monuments which attest the grandeur of those masters of the world, and at an expense that moderns know but little of.

Let me instance Via Æmylia, made by the Consul Lepidus; Via Appia, called by way of eminence; Regina Viarum, built by the censor Appius; Via Valeria; Via Flaminia, made by Flaminus; Via Lata; and many other roads of inferior note, such as the Aurelia, Cassia, Domitiana, Ardetina, all of which were laid out, made and constantly kept in repair at public expense. Highways and works of almost equal prominence were once to be found in the old Spanish peninsula, under the Roman emperors; the public road leading to the massive arch of Torre-den-Barca, in Catalonia; the extended and expensive avenues leading to the bridge of Alcantara; the varied approaches to the colonnade of Zalamea de la Serena; and the celebrated roads about Tarragona and Segovia, are some which history mentions. As these, so were statues, baths, theaters, aqueducts and bridges constructed by the reigning prince, and dedicated to the public as in the case of public highways. These, and the like highways, were those alluded to by the Roman and Spanish law. Can these codes, in their application to the highways of the empire and those of old Spain, be properly and intelligently applied to the public roads of an infant colony like that of Texas, without population or settlement? Those of the empire and peninsula were as permanent as the labor of man could make them, while those with us must necessarily be such as the improvement and future settlement of the country would require. Hatch v. Arnault, 3 La. An. 485.

What manner of analogy can there be between the Roman highways meant by the digest and the public roads in the uninhabited colony of Texas or Louisiana?

We have seen the doctrine in Renthorp's case rests on the Roman and Spanish law, as interpreted by the Louisiana court; and we have attempted to show that, while there were public highways in the Roman empire and Spanish peninsula, such as above named, of which the soil was public property, and that the rule of the Roman or Spanish law, as applicable to those ancient roads, cannot be applied to the roads in Texas, we now advert to the Spanish law authority cited by the court in Renthorp's case, to see if it maintains the proposition. 3 Partida, t. 28, l. 6, says: “Rivers, ports and public roads belong to all men in common; so that strangers coming,” etc.

How this can be said to give “property in the soil” I cannot see; besides, the court, in Hatch v. Arnault, ubi supra, where Renthorp's case is greatly modified, say that the text of the Partidas authorizes no such conclusion as to the property in the soil; nor does the commentary of Gregorio Lopez give any such interpretation to it. Id. 486. Thus Renthorp's case, cited by this court in a former opinion, can have but little weight in the case at bar, aside from the fact that in the above case the highway was in constant use, while in the case in hand it has been abandoned and disused for many years, and actually fenced in for years.

The Louisiana court, in 3 Annual, rejected the doctrine in Renthorp's case as applied to all highways in Louisiana; and it must be rejected with us, since its recognition without great qualification, at this time, would be an alarming disturbance of private right. That case maintains the following propositions: When the public interests require the direction of a road to be changed, or when it becomes useless and is abandoned by the public, adjacent owners resume dominion over the soil; that uniform acquiescence of the right to resume the land when it is required no longer for a road, is a fact entitled to great weight; that the roads, old and new, in Louisiana, as in Texas, are public roads, and not highways, as under the Roman law; that the public has no right in the soil after the public road shall have been abandoned, but it may be resumed by adjacent proprietors.

Public roads, under our own legislature, have everywhere been altered and...