Rogers v. Stover, No. 06-07-00053-CV (Tex. App. 1/18/2008)
| Decision Date | 18 January 2008 |
| Docket Number | No. 06-07-00053-CV.,06-07-00053-CV. |
| Court | Court of Appeals of Texas |
| Parties | ROD ROGERS AND MARY E. ROGERS, TRUSTEES OF THE CRAWFORD M. ROGERS AND MARY E. ROGERS REVOCABLE LIVING TRUST, Appellants, v. JASPER STOVER, W. T. BARBER, RUBY RIGSBY, JOHN ADDINGTON, AND BOWIE COUNTY, TEXAS, Appellees. |
On Appeal from the 102nd Judicial District Court, Bowie County, Texas, Trial Court No. 05C0283-102.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
The parties dispute a purported right of access across Bowie County land owned by Rod Rogers and Mary Rogers, Trustees (referred to collectively as Rogers unless stated otherwise). Jasper Stover, W. T. Barber, and Ruby Rigsby (the neighbors), claim it is a public road, as do Bowie County and, asserts Rogers, its named County Commissioner, John Addington. The parties differ on (a) the nature of the prior use of the property for access and (b) the quality of the road, path, or trail, as it was variously referenced. And, though everyone presumes to know where the road is located, no evidence in the record establishes its location.
After opposing lawsuits1 were consolidated, the neighbors and Bowie County filed motions for summary judgment, and the County filed a motion to dismiss for want of jurisdiction based on sovereign immunity. The trial court granted the summary judgment for the neighbors and granted the County's motion to dismiss.
We reverse the summary judgment rendered for Stover, Barber, and Rigsby and affirm in part the trial court's dismissal of the County. The reasons for those actions can be summarized in two statements: (1) existing fact issues preclude the summary judgment; and (2) the damage claims against the County were properly dismissed, while the declaratory judgment claims should not have been dismissed.
Rod Rogers' parents purchased the land in question in the early 1960s. It was bordered by "Holly Creek Road," a county road. Crossing the property at that time was what was described as a "rutted narrow trail from Holly Creek Road" that was one vehicle wide and described as so rough only a truck could use it.
Around 2000, Rogers erected a fence across the road. The three neighbors complained because the presence of the fence required them to use other routes to access their properties. Their basic argument is that, because the "road" had been used by the public for so long before 1963, it became impliedly dedicated as a public road as a matter of law.
The court granted the neighbors' motion for summary judgment. Though Bowie County also filed a motion for summary judgment incorporating the neighbors' motion, the County received no summary judgment relief. But the County had also filed a motion to dismiss for lack of jurisdiction, claiming the pleadings failed to affirmatively allege a waiver of immunity. The trial court granted the motion and dismissed Rogers' claim against the County.
(1) Existing Fact Issues Preclude the Summary Judgment
Rogers contends the trial court should not have granted the neighbors' motion for summary judgment. We agree.
A summary-judgment movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In our review, we take as true all summary-judgment evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
All roads which have been laid out and established by authority of the commissioners' courts are public roads. A road not originally established under the statute may become public by long-continued use and adoption as such by the county commissioners with the assent of the owner or by prescription. A road may also become public, in the sense that the public have the right to use it, by dedication.
Worthington v. Wade, 82 Tex. 26, 17 S.W. 520, 521-22 (1891). In this case, there was no evidence a road had been established or laid out by the Commissioners' Court. Where no statute is applicable, common law controls.
Under the common law, a property owner can either expressly or impliedly dedicate property to a public use. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass'n, 77 S.W.3d 487, 503 (Tex. App.-Texarkana 2002, pet. denied). The owner's intention to dedicate must be shown by something more than an omission or failure to act or acquiescence on the part of the owner. The facts constituting dedication cannot be left to conjecture; when the asserted dedication rests in estoppel, the evidence should clearly and satisfactorily establish the necessary facts. Henderson v. Frio County, 362 S.W.2d 406 (Tex. Civ. App.-San Antonio 1962, no writ).
This case does not involve an express dedication. The question is whether summary-judgment evidence conclusively proved that a roadway exists and that rights to use the road have been acquired by implied dedication. Whether an implied dedication exists is typically a question of fact. See Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985); Lee v. Uvalde County, 616 S.W.2d 367, 372 (Tex. Civ. App.-Tyler 1981, no writ). Implied dedication requires a clear and unequivocal intention on the part of the landowner to appropriate the land to public use, along with an acceptance by the public. Gutierrez v. County of Zapata, 951 S.W.2d 831, 838 (Tex. App.-San Antonio 1997, no writ); see also Eastex Wildlife Conservation Ass'n v. Jasper, 450 S.W.2d 904, 913 (Tex. Civ. App.-Beaumont 1970, writ ref'd n.r.e.) ().
When it is alleged that a particular landowner impliedly dedicated property to a public use, four elements must ordinarily be proven: (1) the landowner's actions allow the belief that he or she intended to dedicate the road to public use, (2) he or she was competent to dedicate the road, (3) the public relied on the owner's acts and will benefit from the dedication, and (4) the offer of dedication was accepted. Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985) (citing Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984)); Reed v. Wright, 155 S.W.3d 666, 671 n.6 (Tex. App.-Texarkana 2005, pet. denied). When an alleged implied dedication occurred so far in the past as to have no available proof of the intent of the then-owner of the property, evidence of actual use, the purpose of the use, permission for the use, the nature of the road itself, and maintenance of the road by the government or by neighbors can all become important in our review. See Camilla Twin Harbor Volunteer Fire Dep't, Inc. v. Plemmons, 998 S.W.2d 413, 415 (Tex. App.-Beaumont 1999, pet. denied).2
As we recently explained in Reed, uncontested evidence of the long and continuous use of the disputed road by the public raises a presumption of donative intent.3 155 S.W.3d at 671-72. When the origin of the road cannot be determined, evidence of long and continued use by the public can raise a presumption that the landowner intended to dedicate the road. For the presumption to apply, the origin of the road must be "shrouded in obscurity" so that no evidence of the intent of the owner is available. O'Connor, 339 S.W.2d at 882; Reed, 155 S.W.3d at 672; Supak v. Zboril, 56 S.W.3d 785, 790 (Tex. App.-Houston [14th Dist.] 2001, no pet.); Graff v. Whittle, 947 S.W.2d 629, 637 (Tex. App.-Texarkana 1997, writ denied); Fazzino v. Guido, 836 S.W.2d 271, 274 (Tex. App.-Houston [1st Dist.] 1992, writ denied).
As we also recognized in Reed, there is some language in O'Connor indicating that the presumption falls short of a full presumption of dedication. 339 S.W.2d at 882. Specifically, the O'Connor court stated, "a presumption of acquiescence is raised when the origin of the use[] by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use." Id. Later in the same opinion, the court stated "the law raises a presumption that the requisite intention and acts disclosing it were present," but without expressly considering the other elements of dedication in affirming the finding of implied dedication Id. at 883.
We have interpreted O'Connor to hold that, if the origin of the road is shrouded in obscurity, long and continuous public use establishes a presumption of dedication, not just the intent to dedicate. Graff, 947 S.W.2d at 637; see Fazzino, 836 S.W.2d at 274. But compare Supak, 56 S.W.3d at 790 (). We maintain our position as stated in Graff and Reed that, if the origin of the road is shrouded in obscurity and there is no contrary showing of the owner's intention, long and continuous public use raises a presumption of dedication.
Thus, the dispositive questions are whether the neighbors conclusively proved that the origin of the "road" was "shrouded in obscurity" and that, from that time, it was subject to long and continuous use by the public.
With all of these factors in mind, we now examine the summary judgment evidence. The neighbors provided four affidavits from individuals that address the relevant, older time frame. There is other summary judgment evidence, but it has no apparent purpose other than to show a trail of ownership. That is not relevant to this review.
Ruby Rigsby averred that she had owned property "on the West side of the road the subject of this suit," and that since 1944 she and the public have used "the road the subject of this suit." She then...
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