      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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                                       NO. 03-05-00274-CV
                                       444444444444444


                                    Patricia Bush, Appellant

                                                 v.

                                Fayette County, Texas, Appellee



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  FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
       NO. 2001V-215, HONORABLE HENRY J. STRAUSS, JUDGE PRESIDING
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                             MEMORANDUM OPINION


               In this suit between a landowner and a county regarding the characterization of a

section of road in the county as public or private, appellant Patricia Bush contends that the district

court erred by granting summary judgment in favor of appellee Fayette County and determining that

the road was public. For the reasons set forth below, we affirm the district court’s judgment granting

summary judgment in favor of the County.


                      FACTUAL AND PROCEDURAL BACKGROUND

               At issue is an approximately .6 mile portion of St. James Church Road in Fayette

County that begins at its intersection with Old Lockhart Road and extends southward until it ends

at a cattle guard. The road has been in existence at least since 1937. It appeared on a 1965 highway

map prepared by the State Department of Highways and Public Transportation, and on the county’s
1972 and 1987 compilations of its roads. The .6 mile portion at issue was omitted from a 1991

compilation.

                Use of the road by the public dates back to at least 1937. In addition, since at least

the 1970s, the County has maintained the .6 mile portion by blading the gravel road and trimming

brush and trees from the fences running along both sides of the road.

                In early 2002, a newly constructed locked gate appeared on St. James Church Road

just south of its intersection with Old Lockhart Road, blocking access to the .6 mile section at issue.

Subsequently, the County filed suit seeking a declaration that the road is a public road, and an

injunction ordering Bush and her husband, Irvin Davis, to remove the obstruction.1

                Both the County and Bush filed motions for summary judgment. In its motion, the

County contended that the .6 mile portion became a public road through an implied dedication, or,

alternatively, through prescription, and that the County had adduced proof entitling it to a judgment

as a matter of law based on both theories. Bush contended that as a matter of law the County was

unable to prove elements required for it to prevail on either of its theories. The district court granted

the County’s motion for summary judgment and denied all relief to Bush.


                                             ANALYSIS

                In this appeal, we must address whether the trial court erred in granting the County’s

summary judgment. The County relied on two theories in its motion for summary judgment: (1)




        1
         The County’s lawsuit was consolidated with a third party petition Bush had filed against
the County as part of a separate lawsuit in which Bush and the County were the only remaining
parties.

                                                   2
implied dedication to public use, and (2) easement by prescription. Because our determination

regarding implied dedication is dispositive, we need not reach the prescriptive easement issue.

               We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). A movant has the burden of showing that there is no genuine issue

as to any material fact and that it is entitled to a judgment as a matter of law. Tex. R. Civ. P.

166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The nonmovant has no

burden to respond to a summary judgment motion unless the movant conclusively establishes its

cause of action or defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999).

When reviewing a motion for summary judgment filed pursuant to rule 166a(c), we take the

nonmovant’s evidence as true, indulge every reasonable inference in favor of the nonmovant, and

resolve all doubts in favor of the nonmovant. See Nixon, 690 S.W.2d at 548-49.

               Common-law dedications may be express or implied. Implied dedications, such as

the one at issue here, are based on the unequivocal acts and conduct of the landowner. See

O’Connor v. Gragg, 339 S.W.2d 878, 882 (Tex. 1960). The parties agree that this dispute implicates

chapter 281 of the transportation code, which abolished the common law doctrine of implied

dedication in counties with populations of less than 50,000.           See Tex. Transp. Code Ann.

§ 281.003(b) (West 1999) (“An oral dedication or intent to dedicate by overt act is not sufficient to

establish a public interest in a private road under this chapter.”). The statute, however, does not

apply retroactively and, therefore, does not affect an implied dedication occurring before its effective

date of August 31, 1981. Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985); Las Vegas Pecan &




                                                   3
Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Thus, in determining whether an

implied dedication occurred, we look only to actions occurring prior to August 31, 1981.

                The elements of implied dedication are: (1) the acts of the landowner induced the

belief that the landowner intended to dedicate the road to public use; (2) he was competent to do so;

(3) the public relied on these acts and will be served by the dedication; and (4) there was an offer and

acceptance of the dedication. Lindner, 691 S.W.2d at 592; Zavala County, 682 S.W.2d at 256. We

will discuss each of these elements.

                Bush asserts that the County’s summary judgment evidence failed to prove as a matter

of law that the acts of the landowner induced the belief that the landowner intended to dedicate the

road to public use. Generally, in order to meet this element, a party must show a “clear, unequivocal

act or declaration by the owner of his intention to set the roadway apart for the public use.”

O’Connor, 339 S.W.2d at 882; Oswald v. Grenet, 22 Tex. 94, 99 (1858). However, an important

corollary to this rule is that when the origin of the use by the public, and the ownership of the land

at that time, are “shrouded in obscurity,” and no proof can be adduced to show the intention of the

owner in allowing the use, the law raises a presumption that the requisite intention and acts

disclosing it were present. O’Connor, 339 S.W.2d at 882; Dunn v. Deussen, 268 S.W.2d 266, 269

(Tex. Civ. App.—Fort Worth 1954, writ ref’d n.r.e.). As this Court has previously stated, this

corollary is designed to meet a particular anomaly—evidence of long-continued use by the public.

Barstow v. State, 742 S.W.2d 495, 507 (Tex. App.—Austin 1987, writ denied). Bush argues that




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the evidence presented does not constitute a long and continuous use, and, therefore, the presumption

should not apply.2 We disagree.

               In his affidavit, attached as supporting evidence to the county’s motion, Henry Reiss,

who was born and raised in Fayette County and later retired there, averred that he was familiar with

the portion of road at issue, and that “[t]hat part has been there for as long as I can remember, and

has always been open to use and travel by the public.” In addition, Reiss recounted two specific

instances in which he had traveled on the road in 1937 and 1939, and averred that he rode horseback

on that section of the road many times in the 1940s. He concluded that based on his observations

he always had considered the road public:


       During all the times that I have used that part of St. James Church Road that is the
       subject of this Affidavit, that part was free, unobstructed and open for travel and use.
       I never saw any gates, fences or obstructions of any kind across that part of the road.
       I have never seen any signs on that part of road saying it was a private road. As far
       as I am concerned, from what I can recollect, I assumed that part of St. James Church
       Road was a public road.


               The County also produced the affidavit of Jesse Schielack, whose in-laws, the

Niemeyers, have owned property contiguous to the road since 1938, and who based on his

observations concluded the road was public:


       During the approximately 55 years that I have been familiar with and have used that
       portion of St. James Church Road, it has always been open and available to anyone
       that wanted to use that road, until recently when some person or persons placed
       wooden fencing and a locked gate across it to block and obstruct that portion of the


       2
          Although Bush references statements in her deposition that the road was closed for a period
of time, that testimony is not part of the record on appeal.

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       road at a place just south of Old Lockhart Road. Prior to that, over all the
       approximately 55 years, I as well as others used that road whenever desired. I never
       asked permission from anyone to use the road. I have always considered that portion
       of St. James Church Road to be a public road. The gate and fencing which now
       obstructs that portion of the road prevents me and others from using the entire
       Niemeyer tract, and I want the gate and fencing removed so that the property can
       once more be used as it always had been. Although I did not see the fence and gate
       being built, from my conversations with Mr. [Irvin] Davis, I know that he wanted that
       part of St. James Church Road closed and that he built or had that fence and gate
       built across that portion of St. James Church Road.


               The affidavits supplied by the County sufficiently demonstrated the appropriateness

of applying the presumption. See, e.g., Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 532 (Tex.

App.—Fort Worth 1983, no writ) (finding presumption was raised by summary judgment evidence

showing public use for at least fifty years). While a presumption does not result in shifting the

burden of proof, it does shift the burden of producing or going forward with the evidence to the party

against whom it operates. General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993). In the

context of a summary judgment, this principle requires Bush as the nonmovant to produce evidence

creating a genuine issue of material fact to challenge this element.

               Bush presented no evidence to rebut the presumption. She did not assert that the

origin of the road or the owner at that time were known, nor did she contradict any of the affidavit

statements regarding use. See Spinuzzi, 665 S.W.2d at 532-33 (finding fact issue created by

opposing affidavits that contradicted claims of public use and county maintenance). Therefore,

because the County established through its proof that the presumption applied, and Bush did not

offer evidence to the contrary, we find that the County satisfied the first element of implied

dedication.



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               The requirement that the landowner be competent to make a dedication has been

interpreted to mean that the owner held fee simple title to the property. Gutierrez v. County of

Zapata, 951 S.W.2d 831, 839 n.10 (Tex. App.—San Antonio 1997, no writ). In its motion for

summary judgment, the County stated that the same presumption discussed above should apply to

this requirement. This result follows logically from the premise of the presumption. We find the

analysis of our Texarkana sister court in the case of Betts v. Reed instructive. 165 S.W.3d 862 (Tex.

App.—Texarkana 2005, no pet.) (mem. op.). In Betts, a landowner closed a road that had been used

by the public since at least the 1920s. Id. at 866. The court determined that if the obscurity

shrouding the origin of the road also shrouds the identity and intent of the original owner or owners,

then the obscurity also shrouds any assessment of any previous owner’s competency. Id. at 870 n.4.

The facts in Betts are similar to those here, in which Bush, the landowner, closed the road after use

by the public since 1937. Due to the presumption, we find the County has proved this element.

               Although it is undisputed that there has been use of the road by the public and that

there has been some maintenance of the road by the County, Bush further contends that the quantity

of public use and county maintenance was not sufficient to prove as a matter of law that the public

relied on the acts of the landowner and will be served by the dedication.

               Evidence of long, continued, unquestioned use of a road supports a finding that the

public relied on an implied dedication of the road. Supak v. Zboril, 56 S.W.3d 785, 791 (Tex.

App.—Houston [14th Dist.] 2001, no pet.); Graff v. Whittle, 947 S.W.2d 629, 638 (Tex.

App.—Texarkana 1997, writ denied). A road’s characterization as public does not depend upon its

length, nor upon the places to which it leads, nor upon the number of persons who actually travel



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upon it. Gutierrez, 951 S.W.2d at 841. So long as it is free and open to all who have occasion to

use it, it is a public road. Id.

                The County adduced proof showing public use dating to at least 1937. Reiss traveled

the road with a teacher and a couple of boyhood friends in 1937, and in 1939 he traveled the road

with his father. He also traveled it many times on horseback in the 1940s. Reiss averred that the

road had been fenced off from the neighboring properties for as long as he could remember.

Schielack had used the road since the late 1940s, and from 1954 to the present he and others used

it many times to access and work on his in-laws’ property. In addition, he averred that he had seen

many persons other than his relatives, friends, and family members using the road. He also averred

that he had seen deer hunters, oil company vehicles, and the County’s maintenance workers using

the road. Both Reiss and Schielack averred that they had always assumed the road was public, and

that they never asked permission to use the road.

                In addition to showing use by the public, the County also showed that it had

performed some maintenance of the road, with at least one instance occurring prior to 1981. In his

affidavit, James Wiedemann, a County employee, averred that he had hauled gravel and dumped it

on the road in the first half of the 1970s and that he “considered that part of St. James Church Road

to be a public road.” In the affidavit of William Gross, a county commissioner who took office on

January 1, 1981 and whose precinct included the road at issue until 1992, Gross averred that his

employees bladed the gravel road as needed to maintain drainage, and cut brush and trees from the

fence lines every three to four years. Furthermore, Schielack averred that he was aware of

maintenance by the County:



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       I have often seen Fayette County equipment working that part of St. James Church
       Road South of Old Lockhart Road. I have seen County maintainers going up and
       down that part of the Road blading it and spreading the road material. I know my
       mother-in-law once called the Fayette County Commissioner that was over the
       Precinct that the Niemeyer tract is in, to have him install a drain pipe, or rework the
       drain pipe. . . . Soon thereafter the drain pipe was installed. I knew I could call the
       Commissioner anytime I believed the road needed grading or blading, as I considered
       it to be a public, County road.


               The evidence demonstrates that there have been sufficient indications of the public

nature of the road on which the public could rely. There is fencing along both sides of the road, there

was at least one instance of county maintenance prior to 1981, and there has been long and

continuous use by the public. See, e.g., Owens, 251 S.W.2d at 959 (evidence showed roadway was

segregated from land by fencing, landowner and others knew of county maintenance, and public used

the road prior to the landowner obstructing the road). In addition, the road appeared on a 1965 state

highway map, and on 1972 and 1987 compilations of Fayette County roads.3

               While it is not clear that all of the use and maintenance described by the affidavits

occurred prior to 1981, the evidence does show that prior to 1981 the public and the County relied

on the road’s public appearance. Any use occurring subsequent to 1981 supports the County’s

position that the public has been and continues to be served by the dedication. Schielack’s averment

that the gate and fencing obstructing access to the road prevents him and others from accessing his

in-laws’ entire tract establishes that the public is and will be served by the dedication. We therefore


       3
         The omission of the road from the 1991 county road compilation does not signify
abandonment of the dedication. Abandonment occurs when the use for which the property is
dedicated becomes impossible of execution or the object of the use wholly fails. Adams v. Rowles,
228 S.W.2d 849, 852 (Tex. 1950). The only evidence in the record indicates that the omission was
a mistake or oversight.

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conclude that the County proved as a matter of law that the public relied on and will be served by

the public nature of the road. Bush challenges the amount of public use and county maintenance,

but does not otherwise challenge the evidence supplied by the County, and, therefore, does not raise

a fact issue.

                Acceptance does not require a formal or express act; implied acceptance is sufficient.

Viscardi v. Pajestka, 576 S.W.2d 16, 19 (Tex. 1978). All that is required is a general and customary

use by the public. Gutierrez, 951 S.W.2d at 839 n.12; Davis v. Carriker, 536 S.W.2d 246, 252 (Tex.

Civ. App.—Amarillo 1976, writ ref’d n.r.e.). The County’s evidence of public use discussed above

establishes acceptance of the public dedication of the road.


                                          CONCLUSION

                Because the County adduced sufficient evidence on each element of implied

dedication to demonstrate its entitlement to summary judgment, and in light of the absence of

evidence demonstrating that a genuine issue of material fact exists, we overrule Bush’s issues and

affirm the trial court’s judgment.




                                               Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Puryear

Affirmed

Filed: April 13, 2006

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