                             Awwt     25, 1950

Hon. Roy L. Hill                       opiniorr   ao.    V-1098.
County Attorney
Runnels County                         Re: Authority  of the Coun-
Ralllnger , Texas                          tg to prevent a land
                                           owner frcm closing  a
Dear SFr:                                  road across his land.
              Your request    for   an opinion    reads in part as
follows   :
              ‘In the year 1939, a number of citi-
       zens together with the owner of land, over
       which the road was established,       agreed on
       the community using the road across his
       ranch; t&s was a permissive and agreeable
     ‘,use on the part of the owner. They sought
       help from the County in maintaining the
       road, and the Commissioner used his ma-
       chl.nery in gram,        filling in, building
       cattle    guards, etc. on the road, and such
       work is still     being done, as I understand.
       The road is nov, and has been used by the
       general publio,     and a school bus route has
       been maintained       and Is nov being so used
       on this road.      he son of the original     ovn-
       er now wants to close the road . . ."
          You ask vhether           the landovner       csn close    the
road in question.
           It was held In Evaus v. Scott,                83 S.N.    874,
877 (Tex.Clv.App.1904):
              ”
                      There were two theories     upon
      vhlch ihi ippellees      sought to restrain    ap-
      pellant    from Interference    with the publlcts
      use of the road and the closing         of the same;
      First,   an Implied dedication      to such use by
      appellant     and those under whcunhe claimed;
      second, the acquisition      of the right on the
      part of the public to use the road by pre-
      scription.      These respeatlve    olalms of right
      to the we of a highway rest upon and are
     678
           Hon. Roy L. Hill,      page 2     (V-1098)



                  governed by essentially         different    princi-
                  ples of law.       It iS eaid that an Implied
                  dedication     is one arising      by operation of
                  law from the acts of the owner, and is
                  founded on the doctrine         of equitable es-
                  top 41. Elliott        ,011Roads and Streets (26
                                    It is essential      in such case
                  %k   1 !d”,&er      Intended to set the land
                  apart to the use and benefit           of the pub-
                  lic.     This need not be evidenced by deed.
                   ‘It Is enough that there has been scme
                  clear,     UmqtiVocal act or d8claFatlon          of
                  the proprietor       evidencing    an intention     to
                  set it apart for a public use, * and that
                  there has been an acoeptauce on the part
                  of the public.        The length of time the
               .. road has been used by the public is of no
                  consequence,      unless it becomes Important,
                  in connection with other circumstances,
                  to show an intention        on the part of the
                  owner of the land to dedicate it to the
                  public e Oswald v. Grenet, 22 Tex. 94;
                  Preston v. City of Navasota, 34 Tex. 684;
                  City of Corslcana v. Anderson (TexXlv.
                  App.) 78 S.X. 261; Elliott           on Roads dc
‘.                Streets,     Sg 160, 161.      Unlike an implied
                  dedication,      which as ve have seen, oper-
                  ates by way of es~oppel ln pals rather
                  than by grant, a right by prescription
                  rests upon the presumption that the own-
                  er of the land has granted the easement,
                  and that the grant has been lost.             City
                  of Austin v. Hall. 93 Tex. 591, 57 S.Y.
                  563; Saunders v. Simpson (Tenn.Sup.) 37
                  S.W. 195.      To sustain this claim it is
                  not neaessary to show intent on the part
                   of the owner of the land to set apart the
                  road to the use of the public, and the
                   e:ement of acceptance Is not Involved;
                  vhereas the length of t-8            the’road baa
                  been used by the public is the foundation
                  upon which the cla$m rests, and the use
                  upon which the right is predicated must
                  have contlnued uninterrupted           under au ad-
                  verse ‘claim of right’ for the full pre-
                   scriptive    period. . . . The public’s
                  right of prescrlptlon         to a highway is not
                   dependent upon the recognition           of that
                   right by the mnlclpal         authorities    of the
i



    Ron. Roy L. Bill,
                                                                      679
                         page 3    (V-10@)


          county, but is acquired by adverse use
          for the time arid In the manuerprescrlb-
          ed by the rule8 of lav to which we have
          adverted.     Acts done by the munlclpal au-
          thorities    of the county In reoognltion       of
          the road in question as a public hi huay
          vould doubtless be facts or circmm f ances
          evidenci      the aCCOpbtnC8 of it under ap-
          p41144~s 2 heory of dedication,      but the
          absence of such acts vould not prevent the
          acquisition     of the right on the part of the
          public to use the road by preecriptlon.          Pub-
          lic use i.wthe mamer stated and for the
          necessary period of prescription        establishes
          the public right as firmly as if It had been
          created by an express grant.        Furthermore,
      .   a suit to establish      a right to use a way
          claWed by prescription        is in the nature of
          or analogous to a suit to recover land,
          based upon a title      acquired by adverse pos-
          session under our statutes of llmitatlon,
          although the interest       which may be acqtir-
          ed by prescription      is only an easement, and
          not en estate In fee; and, where the pre-
          scriptive    period, as in this state, is not
          fixed by statute,      we conclude the longest
          period of limitation      In actions for land,
          which 1s 10 years, till,by       analogy, apply.
          Hence we hold that 10 years is the erlod
           of prescription    rln this state, and -the
           court correctly    so charged.'
               It was held in Philll~s    v. T. dc P. Ry. 296 S.Y.
    877, 880 (Tex. Comm.App.1927) that "the ublic may by ad-
    verse use for the prescriptive    period, &l.ch 1s ordlnarl-
    ly 10 years in this state, acquire the line of hlghvay in
    a road though the counties have not recognized it as such.*
               In Black v. Terry Countg,        183 S V.26 685, 687
    (Tex.Civ.App.l944),  it was held:
                "The law is vell established    in this
          State that whenever the ovners of land ob-
          tatamwledge      of the fact that the county,
                    the right tomintaina       roadaud,
          acting "&hrough its road overseer, takes ac-
          tual end visible   possession  of the land over
          which It runs by vorklng it or Preparing it
          for public travel,   thereby asserting a Clair
                                                                  .
Hon. Roy L. Rlll,      page 4   (V-1098)



         to it for the public in such manner that
         the ovners, if present, would have ascer-
         tained the fact that the road vas being
         established    In behalf af the county and
         the public general1        the period of llm-
         ltation   or prescrip enIon begins to run.
         The testimony shows that J. S. Black had
         possession    of the entire Section 25 until
         his death and since MS death, J. Ii. Black
         has nW.ntained possession       for himself and
         the other appellants      oonstantly and con-
         tinuous1y.     He admitted in his testimony
         that there probably was a road or passage-
         vay along the north line of Section 25
         ever since the Forrlster       schoolhouse was
         erected,    and stated that he put some of
         the section In cultivation       in 1928.   But
         whether any of the appellants had actual
         know14 4 of the road or not, according
         to the “&estlmony it was laid out by the
         citizens    of Terry County and worked or
          ‘scraped out’ in 1924 by the county au-
         thorities    and graded by them in 1927.
         Even If the appellant,      J. B. Black, who
         represented the other appellants,        did not
         have actual knowledge of the establish-
         ment of the road, he vas charged with such
         tiowledge because he undoubtedly would have
         ho!in about it if he had been present at
         the time and would have lmown of the pub-
         lic travel over it at any time afterwards.
         These acts of establisblng       the road and
         the general travel over it having occur-
         red more than nfneteen years before appel-
         lants filed this suit or made any effort
         to discontinue     the road, the County and
         the public    acquired  title   to it by pre-
         scrlptlon.”
  . ..
           In view of the foregoing,    it is ow oplnlon
that vhen a county maintains a road by working it or pre-
paring it for public travel,    thereby asserting  a claim to
it for the public in such a manner that the road is es-
tablished  for the benefit  of the county and the public
generally,   the period of prescription   begins to run. The
period of prescription   in this State is 10 years. Uheth-
or the Poad In question has been acquired by Runnels
County by rescription    is a fact question which this of-
fice canno ii answer.
I
                                                                             .._




                                                                       681
    Hon. Roy L. Hill,     page 5’ (V-1098)


                              SUMMARY

                A county may acqoire a public road by
         prescription,   which Fn this State is 10
         years.    Uhena countymalntains    a roadby
         vorlslng it or preparing it for public trav-
       ' 41, thereby establishing    a claim to the
         road for the public in such a manor that
         the road is establlshed    for the benefit   of
         the   couuty and the public generally,   the
         period of prescription    begins to run.

    APPROVED%                                Yours very truly,

    J. C. Davis, Jr.                           PRICE MRIRL
    County Affairs  Mvlslon                  Attorney General

    Everett Hutchinson
    Executive Assistant
    Charles D. Mathews                       B%5-ezcAv~
    First Assistant                                       Assistant,

    JR:mf:mw
