                                       April 3,      1957




Honorable      Harold    Green
County    Attorney
Lynn County
Tahoka,    Texas             Opinion      No.   W-105

                             Re:       Opinion     as to authority      of the
                                       Commlssloners       Court   to open a
                                       first   class    county   road seventeen
                                       years   after    petition     and order  ac-
                                       quiring     such road had been entered.

Dear    Mr.    Green:

                Your request    for our opinion          stated    the   following
facts    and    asked  the following   question:

                "In November,      1939,   a petition       was filed
        with    the court     for the opening       of a first      class
        road under      the provisions       of Article       6705, R.C.S.
        Thereafter,       on February     12, 1940,      the Commlssion-
        ers Court duly entered           an order     declaring     that
        said    road be opened      and awarded       damages     In ac-
        cordance     with   the report     of the jury        of view.

                'The road as ordered            open ran in an east-
        ward direction        for one mile          and then in a north-
        south     direction     for three       miles.       The east-west
        portion       of one mile was duly            opened    as was two
        miles     of the north-south           portion,      and this    por-
        tion    of the roadway.         has been used and maintained
        since     the opening      thereof.         The last      one mile of
        the road as petitioned              for was never         opened and
        the fence        that ran across         the same is still
        there.

                 "Approximately       ten years   ago an electrical
        distribution        line   was erected    running   north
        and south       in what would have been the roadway
        had this      last    mile   of road been opened.        This
        distribution        line   is still    In place   and in use.
                                                         .’




Honorable      Harold    Green,     page    2 (WW-105)




                 “The Commissioners       Court would now like
        to open the laat       mile    of said road,   but do
        not want to condemn the utility           company nor
        the property     owners     along   this one mile
        stretch.

                 “QUESTION: Can the Court proceed                under
        the original     petition        and order      entered      in
        1940 and open this          one mile of roadway            or
        has the Court      lost     its   right    therein,      either
        by abandonment,        estoppel,        or otherwise,        and
        If so, must condemnation             proceedings        be in-
        stituted?”

             The easement   for a public      road belongs     to the State
and Its people,     and once an award has been ordered           by the Com-
missioners    Court  to the owners    of a tract     or tracts    of land
over which the road is to pass,        any subsequent      purchaser    takes
subject    to the easement    thereby   created.    Wooldridge      v. East-
land Counte,     70 Tex. 680, 8 S.W. 503.

             When the Commissioners    Court has entered        an orde-,
opening    a road and has made an award,      the order     so entered
is a final     judgment  and is not subject     to a collateral      attack.
Luck v. Welch,      243 S.W.2d 589 (Civ.App.,     n.r.e.).

             This becomes,       then,   a right    vested      In the     people    of
the State    to use the route,         so laid   out by the jury           of view,
for road purposes,        and we are of the opinion             that   a   seventeen
year delay     in putting     the land to the use for which                it was ac-
quired   cannot   deprive     the people      of their     rights    in    the ease-
ment.

               Rights   acquired   by the public         in a road easement          are
not lost     by failure     of the public      to travel        the full     width   of
the road.       Nonken v. Bexar County           221 S.W.2d 370 (CiV.App.,
n.r.e.1;     and It has also      been hel;f that        the public       did not
lose     its right    in a part   of a dedicated         street     because     such
part     was not opened     up or used for 13 years.               City   of Dallas
V.   Gibbs,    65 S.W. 81 (Civ.App.       writ    ref.).

                Non-use of a road closed       by a fence     for twenty      years
is     an abandonment   at law (Art.     6703a,v.c.S.);       but it would seem
that       this has no application    to an easement       over which no road
has      ever existed.     The public   cannot    abandon   its   inchoate     right
t,o    a road in the same way It could         abandon    a road by non-use.
It     is our opinion    that~ there  has been no abandonment           unless
Honorable         Harold     Green,   page    3 (WW-105)




there   are other    circumstances              also    present,     besides     non-use,
which would prove         intent   to        abandon      this   easement    right.       Perry
v. City    of Gainesville,       267         S.W.2d     270 (Clv.App.,       n.r.e.).


                                           SUMMARY

                         Rights     of the public       to a road
                  easement      acquired     by an order       of the
                  Commissioners        Court   have not been lost
                  by seventeen        years   of non-use.         Subse-
                  quent    purchasers       of tracts     crossed     by
                  such easement         took title    subject      to the
                  rights     of the public       in such easement.
                  These    rights     may now be exercised           by
                  opening      up the road.

                                                       Very      truly      yours,

                                                       WILL WILSON
                                                       Attorney General              of   Texas



                                                       Byf&mF
                                                                Assistant
APPROVED:

OPINION COMMITTEE:


H. Grady         Chandler,      Chairman

J.     C. Davis,      Jr.

William      E.     Allen

John      Ross    Iennan

REVIEWED FOR THE ATTORNEY
GENERAL BY:

Geo.      P. Blackburn
