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                                 August 2, 1954

          Hon. Austin F. Anderson           Opinion No. S-137
          Criminal District Attorney
          Bexar County                      Re:   Purchase of right of
          San Antonio 5, Texas                    way by county.
          Dear Mr. Anderson:
                    You have requested an opinion on the following
          questi.on:
                    'Whether Bexar County can legally purchase out
               of Road and Bridge Funds 1.24 acres of land from
               Mrs. Mantlna E. Rodriquez for a road to be known as
               Rodriquez Road, the purpose of which,,isto serve as
               an access road to a new County Park.
                    According to the facts submitted with your request,
          Bexar County has purchased 1.24 acres of .land from,Mrs.
          Martina E. Rodrjquez constituting a 5O-foot right of way
          approximately 1,032 feet in length from an intersection of
          U. S. Highway 90 West to a County Park located north of such
          'ntersection. The Commissioners' Court has designated the
          proposed road as a publ-i~c
                                    road and cansequcntly, part of the
          county road ~systern.Disi,,ute
                                       has arisen as to whether such
          road constitutes, as a matter of law, a public road.
                    In Bradford v. Moseley, 223 S.W. l',:l(Tex- Corn.App.
          1920) the court in determining what constituted a Fublic
          road stated:
                    "What is a public road is in a measure dependent
               upon the facts of each particular case, but the
               character of a road does not depend on its length, nor
               upon the place to which it leads, nor is its
               character determined by the nu,mberof people who
               actuallv travel uoon it. Decker v. Menard (Civ. ALP.)
               2~1S.W. 728; Elliott on Roads 88 1 to 7. A‘road may
               be established which is la cul-de-sac. Id. A road
               op'ento the public is a 'publicroad, though one person
               may be most,benefited by it. Galveston, etc. v.
               Bnudat, 18 Tex. Civ. ALP. 595, ,+', S.W. 939. It -i-sa
               h,,f.:hway
                       1.i’ there :i~s
                                     a general right 'to use it for
               travel, and if it i.so;en to the use of all the people.
               Elliott on Roads, 85 l-3; Sum'r     etc. v. Interurban,
               etc., 141 Tenn. 493, 213 S.W.TlS.
.   -




        Hon.,Austin F. Anderson, page 2   (s-137)


                  II
                   * . . It is obvious from the statement of the
             case that the whole controversy resolves itself into
             one question: Did the Commissioners' Court of Palo
             Pinto Oounty abuse the discretion vested in it by
             law in opening the road?
                   "This is true because it is a part of the state-
             ment of facts that evidence of all the stat,utory
             requirements precedent to the opening of the road
             was offered, and that all were in due and legal
             form, and the trial court found that the commission-
             ers' court determined that a necessity for the road
             existed, and that due notice was given. Such finding
             was as binding as would have~been the verdict of a
             jury. 'I
                  Likewise, it is stated in Rindge Company v. County
        of Los Angeles, 262 U. S. 700, 76 L.Ed. 1186, 43 S. Ct. 689
        71923):
                  If
                   0 . . It is not essential that the entire com-
             munity nor even any considerable portion, should
             directly enjoy or participate in an improvement in
             order to constitute a public use.”
                  In Attorney General's Opinion V-1169 (1951) this
        office held that farm to market and lateral roads constituted
        any public road of the county leading either directly or
        indirectly from the farms to some market exclusive of design
        nated State highways, citing Hastings v. Pfeiffer, 184 Ark.
        952, 43 S.W.2d 1073 (1931).
                  In Attorney General's Opinion V-675 (1948) it was
        held that whether a public road is a necessity is a fact
        question to be ascertained by the Commissioners' Court.
                  Since the road in question has been designated by
        the Commissioners' Court of Bexar County to be a county
        road, and the road is open to the public, and is in fact
        adapted as a way of convenience for the public to travel to
        and from the County Park, it is our opinion that such road
        would constitute a county road and part of the county road
        system. Therefore, the purchase of this right of way may be
        paid for out of the Road and Bridge Fund of the County.
        Carroll v. Williams, 109 Tex, 155 202 S.W. 504 (1918).
Hon. Austin F. Anderson, Page 3 (S-137)


                          SUMMARY

     A county has the authority to purchase, out of
     the Road and Bridge Fund of the County, land
     for a right of way to be used as a public road
     of the county leading from a County Park to an
     intersection with a designated State highway.

                              Yours very truly,
APPROVED:                     JOHN BEN SHEPPERD
                              Attorney General
J. C. Davis, Jr.
County Affairs Division
W. V. Geppert
Reviewer
                                     Assistant
Enos F. Jones
Reviewer
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
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