Ron. Otto P. Moore, Sr.             Opinion No, V-675
County Attorney
Colorado County                     Re: The authority  of the
Columbus, Texas                         Commissioners'  Court
                                        to condemn an ease-
                                        ment over private pro-
                                        perty to enable fish-
                                        ermen to have access
                                        to a river.
Dear Sir:
              Reference.ls   made to your.recent   request   which
reads,     In part, as follows:
                "1. Does a number of private citi-
         zens, who call themselves the general pub-:
         UC, have a legal right to force a.land
         owner whose land abuts' Colorado river in
         Colorado County, Texas, to give or provide
         an easement or roadway over and across his
         private property in order that they or the
         general public may have a passageway to
         and from said river to fish therein?
                 “2, Does the Commlesloners Court of
         Colorado County have the legal right to
         condemn lands for an easement or public
         road over private property in order for
         ;~~:;;;ing    pub110 to.get to the river

              Vhe facts   are a8 followa:
               "From where U.S. Highway No.90 cross-
         es Colorado River at Columbus, Texas, there
         is a distance of about four or,flve  Piles
         along said river there la no way to get to
         the said river except over prtvate property
         of the abutting land owners unless they fol-
         low the meanders of the river along Its
         banks.   From time to time duringthe  paat
         the public have been given perdsslon    to go
.   .




        Hon.     Otto P. Moore, Sr..,    page 2     (V-675 )


                 across the said private property to get to
                 the river, to fish, but from time to time the
                 land owners have suffered damages and had
                 trouble because of the wrongful acts of some
                 of the ones going across said private proper-
                 ty.   Therefore the land owners gave notice
                 that the public would not be allowed to go
                 over their property.    Since then a number
                 of citizen   appeared before the Commisslon-
                 ers Court and asked that an easement or pub-
                 lic road be made across said property In or-
                 derthat    the fishing public might have a
                 passage way to and from said river in or-
                 der that they might fish therein without
                 having to go around the river banks to get
                 there, claiming that gates and a passage
                 way had to be provided at a distance of
                 each mile along said Inclosures,
                       The question then arose as to whether
                 or not Colorado County, acting through its
                 Commissioners Court could legally   condemn
                 private property for an easement or a road-
                 way to said river,   to be used by the flsh-
                aping public to get to the said river to,flsh
                 therein,   without having to follo# the banks
                 and meanders of the said stream,
                    Inasmuch as your first  question involves prl-
        vate rights,   we are not permitted by law to answer same.
        Therefore,   we shall confine our remarks to question Ho.
        2 of your request.
                      Article   2351j V. C, S.,      provides,   in part,
        ttit:
                      “Each commissioners     court    shall:    . D
                       ‘3- Lay out and establish,  change and”
                 discontinue  public roads and highways. . +
                      Article   6703,   V, C. S.,    provides,   in Art,    as
        f 0110ws:
                      “The commissioners court shall order
                 the laying out and opaning of public roads
                 when necessary, a S :   ,,
                      In the case of Havenbekken v. Coryell            County,
lion, Otto P, Moore, Sr.,     page 3    (V-675)


112 Tex. 422, 247 S.W. 10&j, the court            said:

              “Commissioners I courts are created
       by the Constitution,      and are given by its
       express terms such powers and jurisdiction
       over all county business as are conferred by
       the provisions    thereof,   or by the laws of
       the state.     The statutes confer upon such
       courts full power and jurisdiction        to lo-
       cate, establish,    and open public roads and
       to condemn the land necessary therefor.          In
       the exercise    of these powers they are courts
       of general jurisdiction,      and the validity    of
       their proceedings     is to be determined by the
       rules applicable    to such courts.      Having ac-
       quired jurisdiction      of the subject-matter
       and of the party or parties,        they may, ex-
       cept as restrained      or prohibited   by law,
       exercise    su$h powers according to their
       discretion.
            Inthe  case of Bradford      v. Moseley,      223 S.W.
171,   the court said:
              “What is a public road is in a measure
       dependent on the facts of each particular
       case, but the character of a road does no+
       depend on its length, nor upon the place to
       which it leads, nor is Its character deter-
       mined by the number of people who actually
       travel upon it.    Decker v. Nenard (Civ. App.)
       25 S.W. 728; Elliott    on Roads, Sets. 1 to 7.
       A road may be established    which is a cul-de-
       sac*, Id.    A road open to the public is a
       public road, thovh one person may be most
       benefited   by it.
          In Vol.     1, paragraph 9, 4th Ed., Elliott         on
Roads and Streets,     page 11, it is stated, in part:
              “Public roads are such as are open to
       the public and are under the control      of
       the state nor its governmental lnstrumen-
       talities,    as counties,  townships, road dis-
       tricts    and local subdivisions   of a similar
       oharac ter a Such roads are set apart to the
       public,,and are maintained at the public ex-
       pense.
Hon. Otto P. Moore, Sr., page 4       (V-675)


           Also in the same Vol.     paragraph    215,   page 260,
we find:
               ‘Roads and streets used by the public,
     with a right in all the public to use them,
     are undoubtedly public,        and private proper-
     ty may be appropriated        for the purpose of
     constructing       such ways,    The test is, not
     simply how many persons do actually           use
     them, but, how many have a free and unre-
     stricted      right in common to use them;~for,
     if the public generally        are excluded, the
     W8y      mu6t be regarded as a private one;       If
     the public have the right to use ‘?..aeway’at
     pleasure      and on equal terms, it is 8 public
     one, although in reality         it is little   used.
     If it Is a public road, open to all who may
     desire to use it, the fact that it accommo-
     dates but a limited portion of the publio,
     even where It is ordinarily         used by only a
     single family, $+s been held to make no
     difference,       . n
           In the    case of Bradford v; Rosely, supra, the
court in passing     upon the question of necessity of a
pub110 road said:
           n
             . . 0   It is obvious from the atate-
     rent of the     case that the whole controver-
      g,“,“g$g;,;g;;:      ggy$!       g;:yg;    ‘f&
      ty abuse the discretion    .v.ested in it by law
      in opening the road?
            “This Is true because it is a par,t
     of the statement of facts that evidence of
     811 the statutory    requirem*nts precedent to
     the opening of the road W8S offered,     and
     that all were in due snd legal form, and
     the trial   court found that the commlasion-
     ers I court determined that 8 necessits    for
     the rO8d existed,    and that due notice-was
     given.    Such finding
     have been the verdict%:      ~‘.i~~d@g~
     ad&e&l
            In the same oase reported in 190 S.W. 824, and
reversed   on’other grounds, the Court of Civil Appeals
held:
hon. Otto P. Moore, Sr.,     page 5   (V-675)



           “The inference    therefrom is that the
     Legislature    intended that the action of
     the commlssioners’ court 8,s to the nec-
     essity of the road, its proper locetion,
     the form of the petition,       the qualifics-
     tion of its -signers, and all other issues
     save that relatlII nfghgt;;fifg~~~      1 shou1d
     be conclusive.
              Also the Supreme Court in this    case further
aaid in’223     S.W. at page 173:
           “latitude  snd discretion  is allowed
     commissioners ’ courts in the matter of open-
     ing roe.ds, a.nd, it being their duty to open
     road ‘when necessary,’    they may act upon
     their own motion.    Huggins v, Hurt, 23 Tex.
     Civ. App. 404, 56 S.W. 944; Allen v. Parker,
     23 Tex. Civ. App. 536, 57 S;W, 703, writ of
     error denied.
           “The language of the statute (subdi-
     vision 7, art. 2241) as to ‘the power and
     duty of the commissioners1 court as to
     courthouses and jails’   is exactly the same
     as is subdivision  3, relating   to roads, and
     it has been expressly held that the exer-
     cise of that power is left to the disfre-
     tion of the commissioners’ court,     3 a
            The answer to your second inquiry depends en-
tirely   Upon a fact finding by the Commissioners’ Court
that the proposed roe& is neoessary for public use. Its
discretion   Is final unless clearly  abused.  If all of
the statutes are complled’with,    and the Commissioners1
Court finds that such public road is a necessity,     then
in view of the foregoing,    it is our opinion that the
Commissioners’ Court may condemn private property for
such a road.
                           SUMMARY
          Whether a public rO8d is a necessity
     is 8 fact question to be ascertained  by the
     Commissioners’ Court.  If the statutes are
     complied with and the Commissioners’ Court
.   .   .




            Bon. Otto P. Moore, Sr.,   page 6   (~-6731


                 finds that a public road is a necessity,
                 it may condemn private property for such
                 a road.   Bradford v. Moselej, 223 S.W.
                 171; Articles   2351 and 6793, V. C. S.

                                                Yours very truly,
                                            ATTORREYGENERALOF TEXAS

                                                                      ..I.  j
                                                                .r..,~d. .@,
            BA:lSW
                                                  Bruce Allen
                                                  Assistant




                                            M'!PORRRYGERERAL
