                                                                                              R-333




                            EATTORNEYGENERAL
                                       OFTEXAS
                                       AUSTIN    11. -lkxAs
PRICE   DANIEL
.@.TTORNEY
         GENERAL
                                                  May 1, 1947


             Hon. Newell Cambron                           Opinion No. V-177
             County Auditor
             Hopkins County                                Re:      Legality of    placing cattle
             Sulphur Springs, Texas                                 guards and     gate across a
                                                                    public road    rather than
                                                                    fencing the    adjoining land.

             Dear    Sir:

                            On the following    facts,    you ask two related        questions:

                         “A man in our county owns land on both sides of
                    a public road. In order to keep from constructing         a
                    fence on both sides all along the road, he wants to
                    build a cattle guard from the center of the road to
                    the edge of the road on one side and a bridge from
                    the center of the road to the edge of the road on the
                    other side.   Motor vehicles passing along the road
                    could pass over the cattle guard without having to
                    stop. .,Wcgons     and other horse-drawn     vehicles would
                    have to stop, open a gate extending to the center of
                    the road adjacent to the bridge and go through the
                    same procedure      at another point on this road where
                    this man’s property ends.      We would like for you to
                    answer two questions far us: (1) Is it legal to ob-
                    struct a road to the extent of causing drivers of
                    animal-drawn     vehicles to have to open and shut gates
                    extending from one side of the road to the center of
                    the road?    (2) If this procedure  is legal, would it be
                    legal for the county to pay Ter the construction      ofYbe
                    proposed bridges,     gates and cattle guards if the only
                    purpose served by this procedure       is to prevent the
                    owner of the land adjoining the road from having to
                    fence his land along the right of way on both sides of
                    the road?

                            Article   784 of V.P.C.      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 exceed-
                    ing two hundred dollars.    ‘(Acts 1860, p. 97; Acts 1913;
                    p. 258.)”
Hen. Newell     Cambren,   Page 2                     Op$nien No, V-177



          Under the above statute,, it, bar beqn held in the Ease of
Jelly v. State, 19 Cr. R. 76, that the eaucrti,ion of a gate aq,ross the
public road constitutes   an ille,grl obstru@ian    ef, the road. We have
feutxd ne dasas holding that a ,d,*ttile gu8M @un,sqi);uteo an illegal
ob~f~u&iozi.   HaweJer,   in a prier opinion I$J o. 034695, tJIe Attor-
nty Gcnaral ruled that the Cammissioners~~        Court of, T,pavis County
had no authority to construct c,attle    guards across public roads in
Travis County and that cattle guards constituted an obstruCtion.

            In 21 Texas Jurisprudence,   page 723;   724, under the head-
ing “What     is an Obstruction,” it is stated:

           “Evidence having been given of an artificial,        physi-
     cal obstruction   to travel, it ia,irn~i?iMl      thin the&fend-
     ant’s structure encroao.hes upen only part of the rmadway
     and that the remaining part leaves ample space for travel.
     Aay narrowing of the dead to lass c$halrjits legal width is
     an ebstruttion,   and any cbetruction      that interferes   with
     the road in the sense &making         it less convenient for trav-
     el is an offense.   HoweVct,, the oonven*gnce of the public
     is not the sole test, fer afiy psrmanaq$ inte,rfere.nce with
     the public right is an obstrubtireo, alt&ugh,        regarded
     physically,   the def&danB has net in faeih elMtrusted public
     travel,   Thus a cons&&ion was affirmi$d where ~#re eb-
     struction $onsi.atod of #Qttiing the. geadway, pu%ting a cul-
     vert adaoss if., and le$&ig    t+e r’ed i& a e@&t&n         not as
     good a8 beforC.     Fencing aIeng a ?teem        &em a bridge
     lpprersh to the road Yeundary is’ likewi,se a legal ab-
     st~,~c%ia&. And of course an inclosure        of part of the read
     by another dees net justify the, defendant’s inclosure         of
     the, ramaWng     part.”

          A,rticle 6794 of V&S,       authorizes   the Commissioners   Court
of any oour&ty in the State ,@entaining a population of not less than
5690 a&d not more than 5750 inhabitants according to the last pre-
ceding Fedsral    Cttisuci, ‘to @enstruet, cattle guards acs,oss any and
all fir@, second or third class of roads in such county.         This Act
fur&e) provides    “such Qrttlt guards shall, not be classad or aon-
sider:rd as obstruction    en said read, * An sxaminatiion of the last
Fadepal Census of your county shews the pepulation of Hopkins Coun-
ty is more than that described       in S+l?tien 4 above mtntioned.   Con-
sequently, no authority is axtended ts yeux county undar this provi-
+bprpeven;ff the provision     should be a ~uenSti&tional act.

           It is cur epinien that a gate and cattle guard across a pub-
lic road in your county would constitute an obstruction and would be
in violation of Art, 784 of the Penal Code above quoted. It neces-
sarily follows that IIopkins C&my is not authei,ized to pay the cost
of $uch gate and cattle guard,
,   ’




        Hon. NewaIl   Cambron,   Page 3                     Opinien No. V-177




                  1. The erection of a ga$s and c~ttla guard across
            a public read, causing drivers     of animal-drawn  vehicles
            to have to eq,brr aPI* &t&t gabs extending from oae side
            of the road to the center of the road, would constitute an
            illegal obstruction   of %hc road. Art, 704, V.P.C.

                  2. It is net legal for Hqekins County to pay fer the
            censtructlan   of a bridge,  gate and #aWe guard acres8 a
            public mad SO a8 eu prevmt 6bt owaor of 6ht lad rd-
            jeieing 6hc road from having to fence his land along the
             right of way on both aider of the road.

                                               Ymmre very truly,

                                          ATTQMEYBENEIMLOFTEXAS




                                                            E. Cranshow
                                                   A 6 alWant

        CEC: rt

                                          AE2M.A



                                          ATTORNEY      OENERAL     OF TEXAS
