Texlan, Inc. v. Freestone County, 3279
| Decision Date | 15 September 1955 |
| Docket Number | No. 3279,3279 |
| Citation | 282 S.W.2d 283 |
| Parties | TEXLAN, INCORPORATED, et al., Appellants, v. FREESTONE COUNTY, Appellee. |
| Court | Texas Court of Appeals |
Bowlen Bond, Teague, for appellants.
Elmer McVey, H. L. Williford, Fairfield, for appellee.
Freestone County brought this suit against the appellants to establish a certain public road in the eastern part of the County and described it by metes and bounds. It alleged that appellants had placed a gate across the public road at a point where the road intersected the Rock Springs and Butler Public Road and that they locked the gate; that the placing and locking of the gate across the public road at a point which was .8 of a mile from the intersection of the Rock Springs and Butler Public Roads completely obstructed such road and that such obstruction prevented the public from going to and returning from Tyus Bluff or the Board Pile on the Trinity River. Appelee further alleged that appellants have caused such obstruction to be erected and maintained across the public road and prevented the general public from using same and have threatened to continue such obstruction and will do so unless the court issues a mandatory injunction commanding them to remove the obstruction from the road. Appellee further alleged that such obstruction constitutes a public nuisance and asks for the abatement of same and for a mandatory injunction requiring appellant to remove such gate and remove the lock from the gate and to refrain from again erecting and locking such gate, and they asked for general relief.
At the close of plaintiff's case the appellants filed motion to withdraw the cause from further consideration by the jury and render judgment for appellants, which motion was overruled. We sustain the court's action in this behalf. See Weldon v. Quaite, Tex.Civ.App., 175 S.W.2d 969 (no writ history) and authorities there cited. Our Supreme Court in Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609, points 10 and 12, at page 615, approved and followed the pronouncements made in Weldon v. Quaite, supra. See also Maricle v. Hines, Tex.Civ.App., 247 S.W.2d 611, point at page 613 (no writ history).
The jury in its verdict found substantially (1 and 2) that the roadway described in plaintiff's petition was continually used and traveled by the public generally whenever it saw fit to do so for a period of ten years or more next preceding the 26th of March 1954, and that such travel was substantially along and upon the same route from a point on the Rock Springs or Butler Road to Tyus Bluff, and that such use aforesaid was open and notorious and adverse; (3 and 4) that the roadway described in plaintiff's petition was continually used and traveled by the public generally whenever it saw fit to do so for a period of ten years or more next preceding the 26th of March 1954, substantially along and upon the same route from Tyus Bluff to Board Pile, and that such use on the part of the public was open and notorious and adverse to appellants.
In the judgment we find substantially this recital: It is decreed by the court this 12th day of November 1954 that the right of way and road extending eastward from a point one-half mile south of the old William Tyus homestead on the Rock Springs and Butler Public Roads and the Board Pile and the Trinity River be and the same is hereby adjudged to be a public road by prescriptive rights, and described the road by metes and bounds. We also find substantially the following recital: It is ordered by the court that the defendants, Texlan, Inc., Obie P. Leonard, Thad Kirby, their agents, servants and employees, have created a public nuisance by placing gates across said roads and by placing locks on such gates and thereby prevented the public from free and uninterrupted use of such road. It is ordered that such obstruction and nuisance be abated and that a mandatory injunction issue from this court commanding the defendants and their agents to remove the locks from such gates and to refrain from again locking such gates and from anywise obstructing the free and uninterrupted use by the public generally. The defendants seasonably perfected their appeal to this court.
The judgment is assailed substantially as follows: (1) the court erred in overruling defendants' motion to withdraw the case from the jury and render judgment in favor of defendants; (2) that since the undisputed evidence showed that the use of the roadway was by license and permission of the owner and no proof was tendered that the use of the land by the public was with the consent of the owner, Freestone County could not recover as a matter of right; (3) that the undisputed evidence showed that the public did not use the defined way for a period of ten successive years from any period just prior to March 26, 1954, and therefore Freestone County could not recover; (4 and 5) evidence being undisputed that any use of the roadway by the public was in common with the use of the land made by the owner, such use was not inconsistent with the use and license and permission of the owner, and such use was not such adverse possession as would ripen into a prescriptive right, and therefore Freestone County had no cause of action.
Appellee's counter points are to the effect: (1) that the court did not err in overruling defendants' motion to withdraw the case from the jury because the issues submitted by the court were made by the pleadings and tendered by the evidence; (2)
Appellants in their brief say substantially that the pleadings were insufficient to describe a definite way to enable the roadway to be accurately located on the ground, and that there was no evidence to support a judgment condemning private property for public use and if the judgment is sustained and the owner of the land constructed a fence bounding the roadway, then the use of the road without the attending camping, fishing and hunting rights to the public generally would be wholly defeated, because the uncontradicted evidence showed the only purpose of such use was for hunting, fishing and camping on the private lands of the appellants; that no condemnation of the land, or any part thereof, has been undertaken by the State, or any other political subdivision authorized to do so, and to do so without adequate compensation therefor is a violation of Section 17, Art. 1 of the Vernon's Ann.St.Constitution of Texas.
Appellants contend specifically that their motion for judgment should have been granted on the following grounds: (1) the description of the roadway was insufficient to support a judgment; (2) testimony as to the use of the road by people generally was not such a use as to constitute a public use; (3) that the travel over the land of another by a mere user, by license or permission of the owner, affords no basis for prescription, in the absence of consent by the owner to the use of his land by the public as a matter of right; (4) where the traveler is confined neither by fences nor by natural congiguration of the country to a definite road line, the discursive travel that ensues, no matter how long continued, does not establish a prescriptive right; and (5) the use of a way over the land of another when the owner is also using the same is not such adverse possession as will serve as notice of a claim of right, the same not being inconsistent with a license from the owner.
It is our view that the foregoing contentions of the appellants are not applicable to the issues made by the pleadings and the testimony tendered for reasons which we will hereinafter briefly state.
First of all, appellee went to trial on its first amended original petition. We find no exceptions to this pleading. In the absence of such special exceptions, the petition will be liberally construed in the pleadder's favor. See Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, points 1 and 2, 141 A.L.R. 50.
Going back to the pleading, we find the following allegation:
'* * * there exists in Freestone County, Texas, a certain public road, situate in the Eastern part of the said county, which is described as follows:
'On M. Riondo Grant in Freestone County, Texas,
'Beginning at a point on the Rock Springs and Butler Public Road, 1/2 mile South of the old Tyus home place in the East line of said road;
'Thence in an Easterly direction 20 feet North of the center line of a well worn and traveled road 1.2 miles to Tyus Bluff on the banks of Trinity River;
'Thence in a southerly direction 20 feet East of a center line of a well traveled and worn public road .9 of a mile to the Board Pile Site on the banks of the Trinity River;
'Thence West 40 feet;
'Thence in a northerly direction 20 feet West from the center line of said highway .9 of a mile to Tyus Bluff on Trinity River;
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