                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00358-CV

                              George T. CHANEY and Medina County,
                                           Appellants

                                              v.
                                    Simon Camacho and Felipe
                              Simon CAMACHO and Felipe Camacho,
                                           Appellees

                     From the 38th Judicial District Court, Medina County, Texas
                                  Trial Court No. 11-03-20524-CV
                            Honorable Stephen B. Ables, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: December 11, 2013

AFFIRMED

           This appeal concerns whether a portion of Medina County Road 674 is a private road or

was dedicated to the public. The jury determined the road—which we will refer to as the “disputed

road”—was private. The disputed road is an extension of County Road 674, which runs east and

west. To the east of FM 471, which runs north and south, the road is referred to as County Road

674 East. From FM 471 heading west to FM 463, which runs north and south, the road is referred

to as County Road 674 West. At FM 463, the road continues west for seven-tenths of a mile and

it is this unpaved portion of the road that is in dispute. We affirm.
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                                         BACKGROUND

         In 1951 Juan Camacho purchased land in Medina County on which he lived and farmed

with his wife and children. Juan died in 2001 and left the property to his wife, who later transferred

the property to two of their sons, appellees Simon and Felipe Camacho. Simon later purchased a

tract of land adjoining the farm. Appellant, George T. Chaney, purchased his Medina County

property in 1980. The Camachos’ property and Chaney’s property both border FM 463. The

disputed road forms a boundary between Chaney’s property to the north and the Camachos’

property to the south. However, a survey reveals the disputed road lies within the Camacho’s

property. County Road 674 is identified as Road 1901/2 in a 1927 plat filed by the Trustees of the

San Antonio Trust Subdivision of Lands. At some point in 1979, Road 1901/2 was renumbered as

County Road 674 West.

         In the underlying lawsuit, Chaney sued Simon, Felipe, and Medina County asking for a

declaratory judgment adjudicating the public status of the disputed road. Chaney asserts the

disputed road is a public road that intersects FM 463, and it is one of many public roads dedicated

to the public by the Trustees in the plat almost eighty years ago, and has been treated as a county

or public road ever since. The Camachos, who claim the road as their private driveway, counter-

sued Chaney and Medina County for a declaratory judgment adjudicating the private status of the

disputed road. The Camachos contend their property is part of the original San Antonio Trust

Lands and that the Trustees merely dedicated several portions of Trust land as “easements” to be

used for non-profit purposes. There is no dispute that Chaney’s land was never part of the Trust

lands.

         A jury returned a verdict in favor of the Camachos, answering in the negative the following

three questions: (1) was the disputed road expressly dedicated to the public use as a public road,

(2) was the disputed road dedicated to the public by implied dedication, and (3) are the Camachos
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estopped from denying that the disputed road is a public road? On appeal, Chaney and Medina

County (collectively, “appellants”) challenge the sufficiency of the evidence supporting these jury

findings.

                                   STANDARD OF REVIEW

       The jury was asked about the “public” status of the disputed road, issues on which

appellants bore the burden of proof. When the party who had the burden of proof at trial complains

of the legal insufficiency of an adverse finding, that party must demonstrate the evidence

establishes conclusively (i.e., as a matter of law) all vital facts in support of the finding sought.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). A reviewing court must examine the

record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If

more than a scintilla of evidence supports the adverse finding, the issue is overruled. Id. If there

is no evidence to support the adverse finding, the entire record must be examined to determine

whether the contrary proposition is established as a matter of law. Id. The issue is sustained only

if the contrary proposition is conclusively established. Id. The ultimate test for legal sufficiency

is whether the evidence would enable a reasonable and fair-minded fact finder to reach the verdict

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

       When a party attacks the factual sufficiency of an adverse finding on an issue on which it

had the burden of proof, the party must demonstrate on appeal that the adverse finding is against

the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 242. A reviewing

court considers all the evidence and will set aside the judgment only if it is so contrary to the

overwhelming weight of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986). Under either standard of review, the trier of fact is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann,

722 S.W.2d 694, 697 (Tex. 1986); see also City of Keller, 168 S.W.3d at 819.
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                                    PUBLIC USE OF A ROAD

       “A road may become public, in the sense that members of the public have the right to use

it, by dedication.” Worthington v. Wade, 82 Tex. 26, 17 S.W. 520, 521 (1891). “Dedication” of a

private roadway is the setting aside of land for the public use as a passageway. Viscardi v.

Pajestka, 576 S.W.2d 16, 18 (Tex. 1978). An owner’s intent to dedicate may be either express or

implied from the owner’s conduct. Id. at 19; Gutierrez v. County of Zapata, 951 S.W.2d 831, 837

(Tex. App.—San Antonio 1997, no writ). When the owner’s intent is not expressly stated in the

document, an intent to dedicate is a question of fact. Id.

                                    EXPRESS DEDICATION

       In their first and second issues, both Chaney and Medina County assert the trial court erred

by denying Chaney’s motion for a directed verdict and motion for judgment notwithstanding the

verdict because the jury’s answer that the disputed road was not expressly dedicated to the public

as a public road is legally and factually insufficient.

       Generally, an express dedication is accomplished by deed or written instrument. Gutierrez,

951 S.W.2d at 837. Two of the elements of an express dedication, which we believe are dispositive

here, are whether the owner made either an express or implied dedication, and whether there has

been an acceptance of the dedication by local authorities or by the public through use. Stein v.

Killough, 53 S.W.3d 36, 43 n.2 (Tex. App.—San Antonio 2001, no pet.); Lindner v. Hill, 673

S.W.2d 611, 616 (Tex. App.—San Antonio 1984), aff’d, 691 S.W.2d 590 (Tex. 1985).

       Here, appellants rely on a 1927 Dedication of Plat for their argument that the owners of the

disputed road in 1927 (the Trustees) expressly dedicated the road as an easement for public use.

The Dedication of Plat reads, in pertinent part, as follows:

               [A]s trustees of the trust known as the “San Antonio Trust” [we] . . . adopt
       the attached and foregoing plat as the subdivision of certain lands held by them as
       trustees and situated in Medina County, Texas. The public is hereby granted an
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       easement for the use of the roadways shown on said plat or map for ordinary non-
       profit highway purposes; provided, however, that no person except said trustees
       hereinabove named, their successors and assigns, shall ever have the right or
       privilege to use said roadways for any purpose for profit; provided further that the
       said trustees hereinabove named for the sole use of themselves as trustees, their
       successors and assigns hereby expressly reserve and retain the exclusive right and
       privilege to use said roadways for the purpose of erecting, constructing,
       maintaining, and repairing thereon and removing therefrom pipelines, telephone
       and telegraph lines, [etc.].

               Perpetual easements for the use of each respective tract shown on said plat
       or map, and appurtenant in each case to the several tracts which adjoin or are
       contiguous to each respective tract, are hereby created for the benefit of said
       trustees hereinabove named, their successors and assigns; said easements are for
       rights-of-way across and upon each respective tract of land . . . for the erection,
       construction, maintenance, and repair and removal of pipelines, telephone and
       telegraph lines, [etc.], and for this purpose the respective beneficiaries of such
       easements shall have the right of free ingress and egress upon each tract or parcel
       of land. The trustees hereinabove named reserve the right and retain the right to,
       at any time and from time to time, so often as they may desire, close or abandon
       any road, or any part thereof, upon obtaining the consent of the owner or owners,
       only of land fronting those parts of such road which is closed or abandoned.
       [Emphasis added.]

       One of the roads identified in the plat is Road 1901/2, which is now known as County Road

674 West, the disputed road. Appellants assert the language stating “the public is hereby granted

an easement for the use of the roadways” is an unambiguous dedication of the disputed road as a

public road. The Camachos argue this language, at most, grants only a limited, private easement

to the owners of the land within the subdivision.

       The language in the plat appears to support contradictory conclusions. On the one hand,

the plat grants to the public not-for-profit use of the roads, which supports a finding that the

Trustees intended a public dedication. Also, we do not believe the use of the word “easement”

necessarily means the Trustees did not intend a public dedication of the roads. See Las Vegas

Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254, 256 (Tex. 1984) (court held evidence

supported an implied dedication of an easement for public road purposes). On the other hand, the

plat does not use the words “dedicate” or “dedication,” and the Trustees’ reservation of the right
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to, “at any time and from time to time, so often as they may desire, close or abandon any road, or

any part thereof, upon obtaining the consent of the owner or owners, only of land fronting those

parts of such road which is closed or abandoned,” provides support for a finding that the Trustees

intended only an easement for the benefit of the owners of the Trust lands. Therefore, it was the

jury’s prerogative to decide the Trustees’ actual intent. See Viscardi, 576 S.W.2d at 19 (express

declarations in deed supported somewhat contradictory conclusions; therefore, it was up to the

finder of fact to determine the grantor’s actual intent).

           We conclude the Trustees’ reservation of the right to close any road, as often as they desire,

upon consent of the adjoining landowners, indicates the Trustees did not expressly dedicate the

road to the public, but instead, intended only an easement for non-profit use by owners of the Trust

lands. Also, we do not believe the evidence, as discussed further below, conclusively established

the Camachos impliedly dedicated the road or that any dedication was accepted by the County or

the public.

                                           IMPLIED DEDICATION

           The jury also found that the disputed road was not impliedly dedicated to the public.

“Because an implied dedication results in the appropriation of private property for public use

without any compensation to the landowner, [Chaney] 1 bore a heavy burden to establish an implied

dedication.” Callaghan Ranch, Ltd. v. Killam, No. 04–10–00802–CV, 2012 WL 394594, at *3

(Tex. App.—San Antonio Feb. 8, 2012, pet. denied) (mem. op.); Van Dam v. Lewis, 307 S.W.3d

336, 340 (Tex. App.—San Antonio 2009, no pet.).

           The two elements of an implied dedication that we believe are dispositive are whether the

Camachos’ acts induced the belief that they intended to dedicate the road to public use, and (2)


1
    On appeal, Medina County does not challenge the jury’s finding that there was no implied dedication.


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whether there was an offer and acceptance of the dedication. Las Vegas Pecan & Cattle Co., 682

S.W.2d at 256; Killam, 2012 WL 394594, at *3. What the landowner actually intended is not an

element of implied dedication. Gutierrez, 951 S.W.2d at 839 n.9. Instead, we examine the

landowner’s acts to determine whether he induced the belief that he intended to dedicate the road.

Id. Generally, in order to establish donative intent, more than a landowner’s omission or failure

to act or acquiesce must be shown. 2 Baker v. Peace, 172 S.W.3d 82, 88 (Tex. App.—El Paso

2005, pet. denied). Such evidence may include allowing public authorities to grade, repair,

improve, or fence off the roadway from the property. Id.

        We also note that the common-law doctrine of implied dedication in counties with a

population of less than 50,000, such as Medina County here, was abolished by the Texas

Legislature in 1981. See TEX. TRANSP. CODE ANN. §§ 281.002(3), 281.003 (West 2013); Hayes

v. Anderson County, 315 S.W.3d 170, 172-73 (Tex. App.—Tyler 2010, pet. denied). Because

there is no provision in the statute for retroactive application, it can only be applied prospectively.

See TEX. TRANSP. CODE §§ 281.002(3), 281.003. As such, the statutory abolishment of implied

dedication of public roadways does not affect an implied dedication, which, as here, is alleged to

have occurred before the effective date of the statute. See Scown v. Neie, 225 S.W.3d 303, 309-

10 (Tex. App.—El Paso 2006, pet. denied). If an implied dedication occurred prior to that date by

a previous owner, a subsequent purchase of the property does not affect the dedication. Baker,

172 S.W.3d at 87. Therefore, we consider only those actions or evidence occurring prior to the

statute’s effective date of August 31, 1981.


2
  Evidence of a long and continued use of a road by the public raises a presumption of dedication by the owner when
the origin of the public use and land ownership at the time the public use began are “shrouded in obscurity” and no
evidence showing the landowner’s intent in allowing the initial public use exists. Graff v. Whittle, 947 S.W.2d 629,
637 (Tex. App.—Texarkana 1997, writ denied). We conclude Chaney is not entitled to the presumption of dedication
because the origin of the disputed road is not “shrouded in obscurity.” Chaney himself relied on the 1927 plat as
evidence of the road’s origin.


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           The deeds in the Camachos’ chain of title mention Road 1901/2 as part of the property

boundary description, but the deeds do not indicate whether the road is a county road, public road,

or private road. Felipe Camacho testified his family has grown crops and run cattle on a portion

of the disputed road. Two other families, the Browns and the Whittakers, lived in trailers on land

they owned west of the Camacho property and the disputed road provided the only access to their

landlocked property. 3 Another neighbor, Gerald Reynolds, owned land that bordered the disputed

road, which dead ends at his fence. Reynolds would occasionally use the disputed road to reach

the back part of his property. Felipe said he knew the Browns, the Whittakers, and Mr. Reynolds

used the disputed road to access their property. Chaney said he used the front entrance to his

property off of FM 463 until his road could not sustain his oil field and cattle traffic because the

creek often flooded his access to his front gate, at which point he began using the disputed road to

access the back part of his property and he began directing oil field workers to use the disputed

road.

           Chaney testified that “probably” in 1981 he installed a meter at his oil well on his property

and the work was done using the disputed road. He said the Medina Electric Company used the

disputed road to run a line from his neighbor’s property to his well. Although Chaney testified to

use of the disputed road by the electric company, the game warden, and the fire department, he

either was unsure of the dates or the dates were post-1981. When asked if “the only reason those

entities use [the disputed road] would be because you stopped them and took them down that road,”

Chaney responded “yes.”

           This evidence shows at most only that the Camachos acquiesced in the use of the disputed

road by their neighbors and their neighbors’ invitees. But, mere acquiescence and use of a roadway


3
    In 1993, the Browns and Whittakers sold their land to the Camachos.


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by landowners, family, friends, guests, and business invitees is not evidence establishing public

use. See Long Island Owner’s Ass’n Inc. v. Davidson, 965 S.W.2d 674, 682 (Tex. App.—Corpus

Christi 1998, pet. denied); McMullen v. King, 584 S.W.2d 706, 709 (Tex. App.—Corpus Christi

1979, writ ref’d n.r.e.). Additional factors from which donative intent can be inferred must be

present to establish an implied dedication. See Van Dam, 307 S.W.3d at 341.

       One additional factor that may show donative intent is that the road has been maintained

by public authorities. See Baker, 172 S.W.3d at 85. Richard Lee Johnson, a road and bridge

foreman for Medina County Precinct 1, testified the disputed road is within his precinct. Johnson

said one of the Medina County Commissioners told him the County was not “doing anything to

this road yet.” David Montgomery testified he was a Medina County Commissioner for Precinct

1 from 1981 to 1988. Montgomery stated the disputed road was a “county road” when he became

commissioner and Medina County maintained the road. Marvin Bendele testified he was a Medina

County Commissioner for Precinct 1 from 1989 to 1992. Bendele said that when he took office,

he inspected all the roads in his precinct and the disputed road appeared to have been previously

maintained. During his tenure, he would occasionally have the road graded and he installed a slab

on the road across the creek sometime in 1992. However, Bendele said he did not think the

disputed road was a county road until he was told it was by another commissioner in 1989.

       The jury also heard testimony from James E. Barden, who has been the Medina County

Judge since January 1, 2003 and was on the Commissioners Court when the present dispute first

arose. When asked if a county generally owns the actual land, Barden responded, “In some

instances we do own the land beneath the road right of way. In the vast majority of cases we do

not, we just maintain the county—the public right of way.” When asked if an easement is the same

as a public right of way, Barden responded “[t]he same effect, generally, yes.” However, Barden

agreed that not all easements are county roads. When asked if he agreed “that county roads are
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used by anybody in the public for one reason or other reason, commercial, noncommercial, profit,

not for profit, it doesn’t really matter,” Barden responded “[b]ut for transportation purposes, yes.”

Barden testified the county considers the disputed road to be a county road. However, Barden said

the county has continuously maintained County Road 674 up to where it stops at FM 463.

       Although the above testimony involves possible maintenance of the disputed road after

1981, it could indicate the road was impliedly dedicated before 1981 if there is also evidence

suggesting similar maintenance was conducted prior to 1981. Here, no evidence of pre-1981

maintenance was presented. Michael Sorrell, who has lived near the Camachos since 1960 and

has been familiar with the disputed road since at least 1956, testified he has never seen anyone

from the county doing maintenance work on the disputed road, nor has he seen the general public

use the road. The jury heard the deposition testimony of Paul Marbach who worked for a local

water system from 1970 to 1981 or 1982; did backhoe work for people, including Chaney in either

1984 or 1985; and has been familiar with the area since the 1950s. Marbach said the disputed road

has never been a public road and he has never seen any Medina County employees or equipment

on the road. He said the last time he was on the disputed road was in either 1984 or 1985 when he

worked for Chaney and Chaney told him to use the disputed road.

       Based on our review of the record, we conclude Chaney failed to meet the heavy burden

of proof required to show donative intent on the part of either the Camachos or their predecessors.

There is testimony that specific individuals used the disputed road, and that the road provided

access for emergency and commercial vehicles, but the record does not substantiate any intent to

dedicate the disputed road to the public at large. At best, there is evidence that the owners of the

road acquiesced in their neighbors’ use of their property. For these same reasons, we conclude the

record does not conclusively establish the road was accepted as a public road. Therefore, we

conclude Chaney has not demonstrated that the evidence conclusively, as a matter of law,
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establishes that the disputed road was public. We also conclude the jury’s finding that the disputed

road was not public is not against the great weight and preponderance of the evidence or so

contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust.

                                     ESTOPPEL BY DEED

       The jury found that the Camachos were not estopped from denying that the disputed road

was a public road. The jury was instructed as follows:

       A person is estopped from denying that a road is a public road if an easement for
       public use of the road was reserved or excepted from the deeds through which the
       owner acquired title to the underlying road or if the persons’ title to the land
       underlying the road is subject to an easement given for public use of the road.

On appeal, Chaney and Medina County challenge the legal and factual sufficiency of the evidence

in support of this finding.

       The doctrine of estoppel by deed binds all parties to a deed to the recitals contained within

the deed, and prevents a party to the deed from denying the truth of the recitals in a valid deed.

Angell v. Bailey, 225 S.W.3d 834, 841-42 (Tex. App.—El Paso 2007, no pet.). Here, there is no

dispute that the deeds in the Camachos’ chain of title state the conveyances are subject to

easements for roads provided for in the plat. But, as we have already determined, the disputed

road was not expressly or impliedly dedicated as a road for public use. Therefore, equitable

estoppel does not operate here to prevent the Camachos from claiming the road as private.

                                      ATTORNEY’S FEES

       The Camachos sought and were awarded attorney’s fees against Chaney pursuant to the

Texas Declaratory Judgment Act. In his final issue on appeal, Chaney asserts the trial court erred

in ordering him, and not Medina County, to pay the Camachos’ attorney’s fees. Chaney does not

challenge the sufficiency of the evidence supporting the award or the reasonableness or necessity

of the award. Instead, he contends the trial court erred because fairness does not support the award.


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Chaney’s argument is as follows: “No one should be paying the Camachos’ attorney’s fees . . .

[because they] should not be rewarded for watching Mr. Chaney and others use the Road for 24

years since Mr. Chaney’s purchase, and then for starting the fight again in 2010 after losing the

decision in the Commissioner’s Court in 2005.”

       Under the Uniform Declaratory Judgments Act, the court “may award . . . reasonable and

necessary attorney’s fees as are equitable and just.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.009

(West 2008). “The reasonable and necessary requirements are questions of fact to be determined

by the factfinder, but the equitable and just requirements are questions of law for the trial court to

decide.” Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161 (Tex. 2004). We review a trial

court’s decision to award attorney’s fees under the Act for an abuse of discretion. Id. at 162.

       Determining whether to award fees, or how much of an award is equitable and just in a

given case, are questions committed to the trial court’s discretion because of the nature of the issue.

See id. at 161-63. Whether it is “equitable and just” to award attorney’s fees depends, not on direct

proof, but on the concept of fairness, in light of all the circumstances of the case. Id. at 162. Here,

the trial court as well as the jury heard all the evidence adduced at trial, and the jury found in favor

of the Camachos. Nothing in the record indicates an award of fees to the Camachos was arbitrary

or unreasonable. Based on a review of the record, we cannot say the trial court abused its discretion

in awarding the Camachos their attorney’s fees.

                                          CONCLUSION

       We overrule Chaney’s and Medina County’s issues on appeal and affirm the trial court’s

judgment.


                                                    Sandee Bryan Marion, Justice




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