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                                     September   28, 1973

     The Honorable       Gerald W. Schmidt                  Opinion No. H- 111
     County   Attorney
     Gillerpie    Co u nty                                  Re:   Whether the ltrtute,
     Frederickrburg,         Tcua   78624                         of limitation0 applier
                                                                  to rorde dedicated to
                                                                  public uec but either
                                                                  never useda sluch ,or
                                                                  ured end later aban-
     Dear Mr.       Schmidt:                                      bndoaed?

            You hxve requerted our opinion am to whether certain rtatutee of
     limitationmay    have run againrt Gillsepic! County to bar itr claim of title
     to county roadr dedicated in 1645 to public we.    You etrte that mome of
     the roadr have been ured by the public for tranrp?rtrtion purporer while
     otherr have not. and thet prerently all of the roadr ia controversy have
     fallen into diruie and are being fenced qy.privrte ownerr.

            An important upact of your queetion ir that +e roadr have been
     dedicated to the public. Apparently, the German hrmigr@tion Company
     platted the rordr in conjunction with l plan for townlote and outlotr in
     Frederickmburp and rubrcquently filed the plea in the record8 of Gillespie
     County. In our opinion, the male of lotr l  pecified by the plan by reference
     to the recorded plet would be rufficient to conrtitute a dedication of the
     roads.   Adamr v. Rowlrr, 228 S. W. td 049 (Tax. 1950); Andeiron v. Tell
     Timberm Core,     378 S. W. 2d 16 (Tax, 1964).

            The remaining quaetion ir whether any peraon could acquire by occu-
     pancy or rdveree poemereion my right or tttlo to any part of the roadr 80 lr
     to bar the claim of title by the county.

            Prior to 1887 there wan no ltatutory  inhibition againat a perron acquir-
     ing title by limitation to land on which a roid or rtreet had been eetebliehrd.




                                             p* 537
The Honorable    Gerald W. Schmidt, page 2 (H-111)




Oatrom v. City of San Antonio, 14 S. W. 66 (Tax. 1890). And, in fact,
the courta did permit the statute oi limitation to run rgainat a city when
adverse poaaeaaion  warn ahown for a sufficient number of yeara.     Neblett
v. R.S. Sterling Investment Co., 233 S. W. 604 (Tix. Civ:Appt , Beau--
mont, 1921, writ ref’d. )

      However,     in 1887. the Legialature        enacted   a statute   now found am
Article   5517, V. T. C. S.    It provider:

              “The right of the State, all counties, incorporated
              cities and all school diatricta . . . ahrll not be barred
              by any of the proviaiona of thia Title, nor shall any
              person ever acquire. by occupancy or adverse poaaea-
              aion, any right or title to any part or portion of any
              road, atreet, alley, aidewalk, or grounds whichbelong
              to any town, city, or county, or which have been donated
              or dedicated for public use . . . or which have been kid
              out or dedicated in my manner to pub1i.c uae. . . . ‘I

       This provision has frequently defeated claims by individuals to rights
in land dedicated es public roads.  Adama v. R o wlea l. upra; Coomba v.
City of Houaton. 35 S. W. 2d 1066 (Tex. Civ. App.&.lvcrton,   1934, no writ);
Texas I P. Rv. Co. v. Reeae, 163 S. W. 2d 249 (Tex. Civ.App.,       Texarkana.
1942, no writ); County of Calhoun v. Wilson, 425 S. W. td 846 (Tex. Civ. App.,
Corpur Christ{. 1968, writ ref’d.,   IL r. a. ).

       In our opinion no righta hbve bean acquired by any individual,in roads
dedicated to public use in Gillespie County unleaa acquired prior to 1857. or
acquired mince 1955 under the proviaiona of Article 6703e. V. T. C. S. (Acta
1955. 54th Leg., p. 1625, ch. 525) which provider:

              “Whenever the use of a county rord hea b ec o me lo
              infrequent that the adjoining land owner or ownera
              have, lnclored maid road with a fence and maid road
              ham been continuously under fence for           s periodof
              twenty (20) years or more, the public           ahell have no
              further lraement or right to use maid           road unleaa and
              until said road ia re-eat&limbed   . . .        i provided
              however,   t&t this Act #hell not apply         to lccema roada
              reasonably      neceaa~ry   to reach edjoining      lend. I1



                                          p. 538
       .

.. .



           The Honorable Gerald W. Schmidt, pbge 3 (H-111)




                  It is therefore our opinion that, unlearn    private rights were acquired
           prior to 1881, Article 5517, V. T. C. S., excepts counties from the operation
           of the lmtute of l&ttation     with respect to dedicated roads or etreeta. We
           are,further of the opinion that, because of the specific restrictions      imposed
           by Article 5517, K.T. C. S., upon.,tcquiait%n ofrtitl~by~~dv&ie:poiiaaaioa,
           the:10 bnd 25 year ltb tu teaof limitation (Articles 5510 and 5519, V. T. C. S. )
           do not apply to rode    or streets    either belonging to Gillespie County or
           dedicated tb it for the public use. Since 1955, Article       6703~. V. T. C. S.-,
           ham made B narrow exception to the general rule of Article 5517 by permit-
           ting 8 person to acquire rights in rorda’ii he ham fenced the land continuously
           for twenty years and if the road is not now “reasonably neceaabry”         to pro-
           vide access to adjoining property.        Whether much rights have been acquired
           under that Article would depend upon the determination of factual queationr
           which we are not permitted        to make.

                                                SUMMARY


                                Except    where B roadway ham been enckaed by
                         fence  by an adjoining owner continuously for twenty
                         years or more, end tha roadFey is not reasonably
                         neceaaery     to reach adjoihing’ land, mince 1887 roadways
                         belonging to a county or dedicated to B countyfor pub:
                         lit use have not been subject to adverse poaaeaaion
                                                                                .
                         under Articles 5510 and 5519, V. T.C. 5.

                                                      Very truly yours,




           APPBOIj,ED:




           Opinion Commitbe

                                                . p. 539
