                                  1968.



non. Alfred Fitzpatrick           Opinion No. M-265
County Attorney
Dimmft County                     Re:     Fence cutting, road
Carriza Springs, Texas 70834              blocking and related
                                          questions-applicability
                                          of Articles 104 and
                                          1353, Vernon's Penal
Dear Mr. Fitzpatrick:                     Code.
     This office is in receipt of your recent request for
an opinion wherein you state as ‘follows:
    "I am requesting your opinion in regard to three
    matters, closely related, dealing in essence with
    the right of a landowner to have access to his
    land. These questions involve a determination
    of the applicability of Article 784 and 1353,
    Texas Penal Code, the factual situations being
    as follows:

     "Situation 1: A owns 40 acres ~of land designated
     'A' on the attached drawing marked exhibit 1. B
     owns surrounding land designated 'S', the remaining
     land being owned by parties not material to the
     situation. A does not reside on land 'A'; but
     has fenced the same and made certain improvements
     on it. A seeks access on an alleged County Road
     laid out by the Commissioners Court in the late.
     1800's, but n& used as a road for a period in
     excess of twenty years. The alleged County Road
     is marked in red and B's fences in blue. If the
     boundaries of the County Road can be established
     as marked, the fences of B would obstruct the
     County Road.
     "Situation 2: This situation involves a ten
     acre tract of land owned by A in a subdivision
     established in the early 1900's, the subdivision



                         -1283-
.




    Hon. Alfred Fitzpatrick, page 2   (M-265   )


        being partially shown by Exhibit 2. The plat of
        such subdivision shows a 40-foot road as indicated
        on the Exhibit, by which owners of each tract.
        would have access to an established County Road.
        However, no development of the subdivision was
        ever made, the roads themselves not laid out on
        the ground, and the ten acre tract is inclosed
        by the fence of B who owns the majority, but
        not all, of the surrounding land. A does not
        reside on the land, it is not separately fenced,
        and no improvements are on it.
         "Situation 3: A owns the property marked 'A'
         on Exhibit 3. the only access to this land from
         the County Road being through the land of B on
         the road marked in red. This latter road has
         never been declared a public road by the Com-
         missioners Court, but it has been used by A
         and his predecessors in title in excess of a
         twenty-year period. The road is also maintained
         by the County. A does not reside on the land
         except during part of the hunting season, but
         there are improvements on the same and the land
         is 'fenced. B has given notice that he intends
         to construct a fence across the road used by
         A in reaching his land.
         "In each of the three situations .it is necessary
         to know if A would violate Article 1353 by in-
         juring the fence of B, as well as if B violated
         or would violate Article 704 by obstructing the
         road with a fence. If there,is a violation on
         B's part, then the fence would have to be re-
         moved and A would thereby have access to his
         tract of land."
         Inasmuch as the provisions of Article 4399, Vernon's
    Civil Statutes, limit the authority of this office to ad-
    vising your office in regard to the prosecution and defense
    of actions wherein the state is interested, this opinion
    shall be restricted to a discussion of the applicability
    of Articles 784 and 1353, Vernon's Penal Code, to the stated
    fact situations. No attempt will be made to set out, itemize,
    define or otherwise discuss the "right of a landowner to
    have access to his land" or to his civil remedies incident




                             -1284
                                                      .,.
Hon. Alfred Fitzpatrick, page 3   (M- 265 )


thereto.
     Article 784 provides as follows:
     "Whoever shall wilfully obstruct or injure or
     cause to be obstructed or injured in any manner
     whatsoever any public road or highway or any
     street or alley in any town or city, or any
     public bridge or causeway, within this State,
     shall be fined not exceeding two'hundred dollars."
     That the road be a "public road" and that the obstruc-
tion was "wilfully" placed are both necessary elements of the
offense which must be found upon sufficient evidence by the
trier of fact, Andyin the case of a jury, upon proper in-
struction of the Court.
     As to "public road," such element in each case must be
found from evidence showing that the road was in fact open
to, or was in fact being used by the public as such, regard-
less of the condition of title or the private rights of any
party in the land or roadway'in question.
     Article 704 does not define "public road" but its meaning
may otherwise be established, as shown by the'holding in
O'Sullivan v. Brown, 171 F.2d 199, 201 (1948):
     "The Texas legislature did not define a public-road
     or public street in the nonresident motorist sta-
     tute, but it did define them in other acts having
     to do with motor fuel taxes and with the regulation
     of vehicles and of traffic.  [Art. 7965b-1; Art.
     67Olc, Sl(g); Art. 6675a-ltm); Art. 6101d, Subd.
     III, S13(a) and (b)l. Under these definitions,
     to constitute a public highway or street, the way
     must be (1) open to public use as a matter of
     right, (2) subject to State legislative jutis-
     diction under its police power and not privately
     owned or controlled, or (3) publicly maintained
     when any part of it is open to use: while a
     private road or driveway is a way or place pri-
     vately owned and used by the owners and those
     having express or implied permission from the
     owners, but not by others.
     "The distinguishing characteristics relative to



                         -1285-
Hon. Alfred Fitzpatrick, page 4   (M-   265 )


    the nature and use of highways is that they be
    open generally to the public, as a matter of
    right, regardless of their ownership. (39 C.J.S.,
    Highways, Sl, pages 915, 919 )"
     In Nichols v. State, 120 Tex.Crim 219, 49 S.W.?d 783,
784 (1932). the court said:
    "The question thus arises as to what is a public
    highway or road in the sense that term is used
    in Article 802, P.C. The object of said sta-
    tute is to protect the general public, while
    using ways which are open to the public from
    dangers incident to the operation thereon of
    automobiles.
     II.. .We further believe that the allegations
     in the second count were sufficient. Also, that
     by oral testimony of persons reasonably familiar
     with such use, it may be shown that such street,
     road, or highway is public, that is, one used
     or open for use and traffic by the public. Questions
     as to the time or manner of dedication, title to the
     soil, place of location, as within a city, town, or
     in the county, or questions of private rights and
     privileges, become ordinarily immaterial upon a
     trial when the indictment charges that the place
     of such violation, in a case like this is upon
     a public road or highway, and when the testi-
     mony of witnesses be without contradiction that
     such road is open or used for traffic by the
     public generally."
         As to the remaining element of "wilfully," it should
be pointed outthat the cases hold, and any instruction
should import, that intent is a constituent element of this
offense, and it must appear that the obstruction wa.8willful
on the part of the accused. Such intent is not to be pre-
sumed from the act of obstruction; but it must be proved
as a fact as such fact is proved in other offenses where
it is an element of the offense. Stinkoeter V. State, 16
;;gii;irn.     72 (1884); Shubert v. State, 16 Tex.Crim. 645
           : Jenkins v. State, 124 Tex.Crim. 92, 60 S.W.Zd
1040 (19rn.
   (‘The three fact situations presented require separate



                          -1286 -.
Hon. Alfred Fitzpatrick, page 5    (l-l-
                                       265 )



consideration as to the element of "public road," to-wit:
                 ,':
     Situation 1:' The road was laid out by the Commissioners
Court in the late.lEOO's, presumably was opened, used and
maintained as such for some time, but has not been used as
a,road for a period of time in excess of twenty years.
     Under certain circumstances the public nature of such
a road may be terminated by discontinuance on the part of
the Canmissioners Court, adverse possession on the part of
the property owner, or by common law abandonment. These
will be discussed separately.
     a.   Discontinuance by Commissioners Court.
     If this road was laid out in accordance with the pro-
visions of Article 6703, Vernon's Civil Statutes, et seq.,
the right of the'public in such road may be.discontinued
only by the Commissioners Court following the procedure
for such discontinuance as set out in Article 6703, et
seq., Porter v. Johnson, 140 S.W. 469 (Tex.Civ.App. 1911,
no writ).
     Provided, however, that Article 5526a, Vernon's Civil
Statutes, provides that if the Commissioners Court, though
not strictly following such procedures, had passed an order
closing and abandoning, or attempting to close and abandon
such public road, the right of the public therein would
be cut off after two years inasmuch as such statute purports
to vest limitation title in the landowner in possession.
     If, however, the road had not been laid out in accord-
ance with the provisions of Article 6703, its discontinuance
might be effected by means other than those prescribed in
Articles 6703, et seq. Simons v. Galveston H. & S.A. Ry.
co., 57 S.W.2d 199 (Tex.Civ.App. 1933, err. dismd.). It
would therefore, appear that in cases where the road had
not been laid out in accordance with Article 6703, et seq.,
a discontinuance might be shown by acts short of Canmissioners
Court compliance with Article 6703, et seq., or without such c,
an order as is described in Article 5526a.
                 .,
                 .
     The facts stated in Situation 1 do not appear to in-
dicate that a discontinuance was effected in any of the above
described ways and it is doubtful that the public nature of
the road could be found to have been terminated by discon-



                          -1287-
Hon. Alfred Fitzpatrick, page 6    (M- 265 )


tinuance on the part of the Commissioners Court.

     b.   Adverse possession bv land owner.
     As a general rule public easements are not subject to
the bar of the statute of limitations. Eidelbach v. Davis,
99 S.W.Zd 1067, 1073 (Tex.Civ.App. 1936, error dismd.).
In fact, Article 5517, Vernon's Civil Statutes, in excluding
county roads from the applicability of the limitation sta-
tutes provides as follows:
     "The right of the State, all counties, incorpor-
     ated cities and all school districts shall not
     be barred by any of the provisions of this Title,
     nor shall any person ever acquire, by occupancy or
     adverse possession, any right or title to any
     portion of any road, street, alley, sidewalk, or
     grounds which belong to any town, city, or county,
     or which have been donated or dedicated for public
     use to any such town, city, or county by the owner
     thereof, or which have been laid out or dedicated
     in any manner to public use in any town, city or
     county in this State."
     The provisions of Article 5517, supra, prohibit the
taking of title to old roads by adverse possession.
v. Henderson County, 259 S.W.2d 264, 268 (Tex.Civ.App.
                                                     M%,
error ref.. n.r.e.1. However, in 1955, Article 6703a, Vet-
non's Civil Statutes, was enacted which provides:
     "Whenever the use of a county road has become
     so infrequent that the adjoining land owner or
     owners have enclosed said.road with a fence and
     said road has been continuously under fence for
     a period of twenty (20) years or more, the public
     shall have no further easement or right to use
     said road unless and until.said road is re-established
     in the same manner as required for the establishment
     of. a new road; this Act shall not apply to roads to
     a Cemetary or Cemetaries; provided, however, that
     this Act shall not apply to access roads reasonably
     necessary to reach adjoining land."
     It is a fact question as to whether this road is an
"access road reasonably necessary to reach adjoining land,"
and if so, Article 6703a not only would be ineffective in



                          -1288-
    -
.




        Hon. Alfred Fitzpatrick, page 7     (M-   265 1



        cutting off the private right of an adjoining land owner
        but by its own provisions it would not cut off the public
        rights in such road in that its provisions simply do not
        apply in such situation.
             Further problem is presented by the question of whether
        Article 6703a is prospective or retrospective in nature. If
        determined to be prospective, the twenty year limitation
        period would not begin to run before its enactment in 1955
        and in no case would any rights have yet ripened thereunder.
        Thus, if the road had been properly laid out in accordance
        with Article 6707 et seq., as a matter of law, the public
        nature of such road has not been lost by adverse.possession
        under this statute, If the statute were determined to be
        retrospective in nature it would be a quest&   for the trier
        of fact whether the use had become so infrequent that the
        adjoining land owner or owners had enclosed said road with
        a fence and said road had been continuously under fence
        for a period of twenty years or more.
             C.   Canrmonlaw abandonment.
             It is recognized that in limited situations the public
        nature of a road may be lost by common law abandonment, and
        it is believed that 39 C.J.S., Highways, Section 130, pages
        1065, 1066 contain as concise a st'atementas can be found
        on the point, to-wit:
             "While 'once a highway always a highway' is an
             ancient maxim of the common law, nevertheless as
             far as the public is concerned, the right to a
             public highway may be lost by abandonment, sub-
             ject only to the limitation that the abandonment
             shall not injure vested rights. To effect an
             abandonment there must be an intention to abandon.

             "It is presumed that a highway, once shown to exist,
             continues to exist. Abandonment is a fact which
             must be proved and the burden is on the one who
             asserts abandonment to prove it by clear and satis-
             factory evidence.*
             Texas recognizes such doctrine, as is shown by the
        following excerpt from the case of Maples v. Henderson CO.,
        supra, to-wit:




                                  -1289-
Hon. Alfred Fitzpatrick, page 8   (M- 265 I


     ‘I
          .We agree with appellants that a common-law
          .   .

    abandonment is made up of two elements: (1) Acts
    of relinquishment, and (2) the intention to abandon.
    Both elements must be shown by the parties asserting
    the abandonment, though intention may be inferred
    from the conduct of the parties. . . .Neither do
    we believe that the failure of the County to grade
    ,the road in recent years or otherwise maintain it,
    establishes an abandonment as a matter of law."
     It would, therefore, appear that even though,the road
had been laid out in accordance with Article 6703 et seq.,
and had not been discontinued by action of the Commissioners
Court, the defendant might show facts upon which could be
found a common law abandonment and therefore defeat a
finding of the existence of a public road.
     Situation 2. This involves a forty foot roadway dedi-
cated to public use by plat, but no development has been
made of the subdivision and the roads were never "laid
out” on the ground.

     "It is well settled that, though a particular plat
     undertakes to dedicate streets and roads, such
     does not make them public roads, with consequent
     obligation on the Commissioners Court, as the dedi-
     cation is a mere offer; McQuillin on Municipal
     Corporations, Second Edition, Vol. 4, sec. 1700;
     16 Am.Jur. p. 374; 66 A.L.R. 332; McLennan County
     v. Taylor, Tex.Civ.App., 96 S.W.Zd 997." Com-
     missioners Court v. Frank Jester Development
                                     (Tex.Civ.App.
     ~Sg~2”P;          ZiYrfi'lf:
                                loo7
     Although the.above case dealt primarily with the obli-
gation of the county in regard to the maintenance of the
road, in Rankin v. State, 8 S.W. 932 (1888), the Texas Court
of Appeals, in a criminal prosecution under the forerunner
of Article 784, Texas Penal Code, spoke directly on this
point by holding as follows:
     "By the first count in the information the de-
     fendant is charged with unlawfully and willfully
     obstructing and injuring, and causing to be ob-
     structed and injured, a public road. This count
     is not sustained by the evidence; the fact being



                         -1290-
.   .




        Ron. Alfred Fitzpatrick, page 9   (M- 265   )



             that the obstruction complained of, a fence, was
             on defendant's land at the time said road was es-
             tablished. The said road was never opened after
             it was established. It could not be obstructed,
             within the meaning of Article 405 of the Penal
             Code, until it had been opened."
             Rankin, supra, involved a road laid out apparently by
        the C-mxioners    Court in accordance with the provisions
        of 6703 et seq., and involved a pre-existing fence, yet
        it is important to note that the Court directly held that
        a road could not be obstructed until it had been opened.
        Although the road in Situation 2 is one that was laid out
        by "dedication" of the property owner, the facts would not
        appear to support a finding that it had ever been opened
        to the public; and until this was done, the evidence could
        not support a finding that it was a "public road."
             Situation 3. This involves a road that has never been
        declared to be a public road by the Commissioners Court,
        but the road is maintained by the county. According to     :
        the plat you submitted the road crosses the land of "B"
        and dead-ends at the property of "A'. The test of whether
        a road is in fact public was discussed in Bradford v. Moseley,
        223 S.W. 171.,173 (19201, by the Texas Commission of Appeals
        as follows:
             "Whether a road is public depends in a measure
             on the particular facts, but it-does not ,depend
             on its length, its terminus, no~r the number of
             people who use it; itis a public road if there
             is a general right to use it for travel even if
             it ends in a cul-de-sac."
             Proof may be adduced of the fact that the road is public
        in a number of wavs,.as shown in the holding of the courts in
        Wood v. State, 45 S.W.Zd 599, 600 (Tex.Crim. 1931):
             "It is well settled under the decisions of this Court       "
            that a road may be shown to be a public road by other
            evidence than the production of the order of the
            commissioners' court establishing it as such. The
            undisputed evidence offered by the state showed that
            between 3 or 4 years prior to the 4th day of July,
            .1929, Richards Park was donated as a fair'ground,
            and that this road was opened up through the park,



                                 -1291-
Hon. Alfred Fitzpatrick, page 10      (M-   265)


    and that since that time it had been open to and
    used by the general public as a nublic road, and
    that for the same length of time the county com-
    missioners' court, actinq throuqh the commissioner
    in whose precinct the road lay, had recognized it
    as one of the public roads of the county, and had
    regularly worked the same as a publ,icroad for the
    county with county employees, teams, and machinery,
    and had been so doing for more than 3 years. This
    was sufficient evidence to establish it as a public
    road prima facie under the decisions of this court.
    See Michel v. State, 17 Tex.Apo. 108: Berry v.
    State, 12 Tex.App. 249; Race v. State, 43 Tex.Cr.R.
    438, 66 SW 560; Jolly v. State, 19 Tex.App. 76;
    Dyerle v. State (Tex.Cr.App.) 68 S.w. 174; Ward
    v. State, 42 Tex.Cr.R. 435, 60 S.W. 757: Johnson
    v. State (Tex.Cr.App.) 31 S.W. 2d 1084."
     In Johnson v. State, 31 S.W. 2d 1084, 1086 (193(l),a
Commission of Appeals,.casewith opinion approved by the
Court of Criminal Appeals, the court held:
     "The state was unable to show from the records
    that the road unon which appellant was alleged to
    have driven the automobile had ever been established
    as a public road by order of the commissibners
    court, in compliance with the statutory require-
    ments, and the state then resorted to proof of
    .long usage of sarjdroad by the public, and recog-
    nition of it as a public road'by the commissioners'
    court in working it in order to establish the public
    character of the road. All of such testimony was
    objected to by appellant on the ground that no 'proper
    predicate had been laid.' We are unable to perceive
    what further predicate was necessary than to show
    an absence of court orders establishing the road in
     compliance with the statute to render admissible
    the evidence objected to. The evidence shows con-
    clusively that the road in question had been used
    by the general public as a public road for more
    than thirty years. Road hands under the old road
     laws had worked it under the supervision of road
     overseers; and in recent years the commissioners'
    court, through the county commissioners or road
     supervisors, had graded and worked the road. We
    do not undertake to set out the evidence in detail,.



                         - 1292   -
Hon. Alfred Pitspatrick, page 11   (M- 265 )


     but it is ample to establish that the road in
     question was a public road under many author-
     ities . . .W
     It is thus apparent that a road as that above described,
if open to, used, and recognized by the public as such, may
be shown to be a public road within the meaning of Article
784, and if so found by the trier of facts upon sufficient
evidence of such use, maintenance, accep'tanceand freedom
of passage, should sustain a conviction.
     Article 1353, Vernon's Penal Code, provides as follows:
     "Any person who, shall wilfully and wantonly or      .
                                           .
     with intent to injure the owner cut,  injure or
     destroy any fence or part of a fence (unless such
     fence is the property of the person so cutting or
     destroying the same) shall be confined in the
     penitentiary not less than one or more than five
     years. A fence within the meaning hereof is any
     structure of wood, wire, or of both, or of any
     other material intended to prevent the passage
     of cattle, horses, mules, asses, sheep, goats
     or hogs, provided however, that it shall con-
     stitute no offense for any person ownin or
     residing upon land inclosed  by the land4 of
     another who refuses permission to such person
     residing within such inclosure free egress or
     ingress to their said land for s-aidperson to
     open a passage way throuqh said inclosure."
     Here, again, "wilfully" and ywantonly or with intent
to injure the owner" are both requisite elements Of the
offense and must be found to exist by the trier of facts.
Hwever, your inquiry is directed more to the applicability
of the exclusion from coverage of "any person owning or re-
siding upon land ipclosed by the land (fence) of another who
refuses permission of such person residing within such in-
closure free egress or ingress to their said land for said
person to open a passage through said inClOSUre.”

                                                  r




l So in enrolled bill.   Probably should read "fence."


                                         !
                          -1293-
    Hon. Alfred Fitzpatrick, page 12   (M- 265 )


         It is the opinion of this office that it would be a
    violation of Article 1353 for anyone to cut such fences  if
    they were not the Owner of such fences, except in situations
    where free~egress and ingress have been denied to a person
    residing within such enclosure and the fence is cut by the
!   Owner of the property enclosed or by such resident thereon.
         Where there is no resident involved, the Owner of such
    enclosed land does not have the need of immediate ingress
    and egress and must avail himself of remedies other than
    that of self-help of opening a way. In none of the three
    fact situations do you show anyone to be residing upon such
    premises; therefore, the cutting of such fence would sub-
    ject the offender to prosecution under such Article, all
    other elements of the offense being present.
                         SUMMARY
         (1) A road laid out by the Comissioners Court
         in the late 1800's, but not used as a public road
         for more than 20 years, remains a "public road"
         as that term is used in Article 784, Vernon's
         Penal Code, unless rights of public were cut
         off by (a) discontinuance by Commissioners Court,
         (b) adverse possession by land owner, or (c) by
         common law abandonment, each of which are fact
         questions to be determined by the trier of facts.
         (2) The mere fact that an area is shown on a
         recorded plat as a road dedicated to public use,
         but which has never been opened to the public,
         would not support a finding that such area was a
         "public road,' as such term is used in Article
         784.
         (3) Road maintained by county as a public road
         but which has never been laid out or dedicated
         to public use by official action of the Commis-
         sioners Court may none-the-less be found by the
         trier of facts to be a "public road," as that
         term is used in Article 784.
         (4) In each of the three fact situations re-
         ferred to above, it would be a violation of
         Article 1353, Vernon's Penal Code, for anyone




                             - 1294-
Hon. Alfred Fitzpatrick, page 13    (M- 265 )     ,


    to cut such fences if they were not the owner
    of such fences, except in situations where
    free egress and ingress has been denied to a
    person residing within an enclosure and the
    fence,is cut by the owner of the property en-
    closed or by the resident thereon.
    (5) For there to be a violation of either
    Article 784 or 1353, the acts of the offending
    party must be found by the trier of facts to
    have been done wilfully; and such intent is
    not to be presumed from the act done, but it
    must be proved he a fact.
                                v      truly yours,
                               A@


                                    orney   General of Texas
Prepared by Howard M. Fender
and Harold Kennedy
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE'   '
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
Ronald Luna
Fisher Tyler
Brandon B. Bickett
Arthur Sandlin
A. J. Carubbi, Jr.
Executive Assistant Attorney General

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