Opinion issued August 27, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00535-CV
                           ———————————
   GREGORY R. MATTOX AND BARBARA WILKERSON, Appellants

                                       V.

         GRIMES COUNTY COMMISSIONERS’ COURT, Appellee


                   On Appeal from the 506th District Court
                          Grimes County, Texas
                        Trial Court Case No. 32,015


                         MEMORANDUM OPINION

      Appellants, Gregory R. Mattox and Barbara Wilkerson, challenge the trial

court’s rendition of summary judgment in favor of appellee, Grimes County

Commissioners’ Court (the “County”), in the County’s suit against Mattox and

Wilkerson for nuisance. In two issues, Mattox and Wilkerson contend that the trial
court erred in denying them summary judgment and granting the County summary

judgment.

        We affirm.

                                    Background

        In its third amended petition, the County alleged that Mattox and Wilkerson

own lots 35 and 36 (the “lots”) in the southwest corner of Hill Forest Manor

Subdivision (the “subdivision”). A road, known as Hill Forest Lane, runs along

the southern border of the subdivision and the lots.

        In 2006, Mattox , Wilkerson, and B.J. Aldredge, a neighbor who owns a lot

at the eastern end of Hill Forest Lane, filed applications with the County for it to

vacate1 the eastern and western ends of Hill Forest Lane, asserting that the County

had abandoned these portions of the road. The County, concluding that it had

abandoned the easternmost 119 feet of Hill Forest Lane, granted Aldredge’s

application and vacated the eastern end. However, the County denied Mattox and

Wilkerson’s applications to vacate the westernmost 134 feet. It is this 134-foot

strip of land, which abuts the southern boundary of the lots, that is at issue in this

case.

        In March 2007, Clifford and Eleanor Jackson, who own the acreage which is

west of and abuts lot 36 and the subdivision, sued Mattox and Wilkerson to
1
        See TEX. TRANSP. CODE ANN. § 251.051 (Vernon 2013) (authorizing county
        commissioners’ court to close, abandon, or vacate public roads).


                                          2
determine the Jacksons’ access to Hill Forest Lane. 2 The Jacksons asserted that the

western end of Hill Forest Lane did not terminate along the southern border of the

lots; rather, it extended across both of the lots to the eastern boundary of the

Jacksons’ property.

      In April 2007, Mattox and Wilkerson filed an application asking the County

to “cancel”3 the west end of Hill Forest Lane.         After the County denied the

application, Mattox and Wilkerson filed suit against the County in the district

court, seeking to compel the County to grant their application. After the district

court granted summary judgment in favor of the County, the Fourteenth Court of

Appeals reversed and remanded, concluding that summary judgment was

precluded by fact issues regarding whether there was any pending or existing

development on the Jacksons’ property and whether Hill Forest Lane was a

proposed interconnection of infrastructure. 4

      In 2010, Mattox and Wilkerson “erected/constructed an obstruction of the

causeway of the [r]oad,” a fence, which closed off the westernmost 134 feet of Hill

Forest Lane. The Jacksons obtained injunctive relief, requiring the removal of the

fence, and Mattox and Wilkerson appealed.            After this Court reversed the

2
      Jackson v. Mattox, No. 30,753 (506th Dist. Ct., Grimes Cnty., Tex., filed Mar. 6,
      2007).
3
      See TEX. LOC. GOV’T CODE ANN. § 232.008 (Vernon Supp. 2014).
4
      See Mattox v. Grimes Cnty. Comm’rs’ Court, 305 S.W.3d 375, 387 (Tex. App.—
      Houston [14th Dist.] 2010, pet. denied).


                                          3
injunction and remanded the case to the trial court, the Jacksons non-suited their

claims against Mattox and Wilkerson. 5

      The County further alleged that Mattox and Wilkerson reconstructed their

fence, which is a “public nuisance per se” because it constitutes an “unreasonable”

interference with the public’s use of the Hill Forest Lane and prevents the County

from maintaining the road. The County sought a declaration that

      the entirety of Hill Forest Lane, as shown on the map of Hill Forest
      Manor Subdivision recorded . . . [in the] deed [r]ecords of Grimes
      County, Texas, except the easternmost 119 feet thereof which on
      August 14, 2006 was found by the Commissioners’ Court to have
      been abandoned and was therefore vacated, is a public road subject to
      use by the public and maintenance by [the County].

(Emphasis added.) It also sought a declaration that it “has the right to remove any

and all obstructions of the [road],” and an injunction, enjoining Mattox and

Wilkerson from further obstructing the road.         The County sought both actual

damages and exemplary damages, alleging that Mattox and Wilkerson had acted

with “malice or gross negligence” in constructing the fence.               Mattox and

Wilkerson answered, generally denying the allegations and asserting various

affirmative defenses.




5
      See Mattox v. Jackson, 336 S.W.3d 759, 760–64 (Tex. App.—Houston [1st Dist.]
      2011, no pet.) (concluding Jacksons did not file verified application for temporary
      injunction or present evidence of probable right to relief and probable, imminent,
      and irreparable injury in interim).

                                           4
      The County then moved for summary judgment on its nuisance claim,

arguing that it was entitled to judgment as a “matter of law” because the evidence

conclusively establishes that Hill Forest Lane is a “public road” and Mattox and

Wilkerson had obstructed it. It asserted that the subdivision developer, Bond

Blackman, had “expressly dedicated” Hill Forest Lane to the public via the plat of

the Hill Forest Manor Subdivision,” filed on May 9, 1966 and “accepted by the

[County].” Also, Blackman had impliedly dedicated Hill Forest Lane to the public

by selling lots with reference to the plat. And, in 2007, the County “conclusively”

established a public interest in Hill Forest Lane by adopting a County road map

(the “map”).6 Moreover, Mattox and Wilkerson, after receiving notice that Hill

Forest Lane was to be included on the map, did not contest its inclusion. And their

construction of the fence across Hill Forest Lane constitutes a “purpresture,” an

“encroachment on public rights or the appropriation to private use of that which

belongs to the public,” and is, thus, a “common law public nuisance per se.”

      The County further asserted that although Mattox and Wilkerson

“contest[ed] the public nature of” the westernmost 134 feet of the Hill Forest Lane

and alleged that “such portion ha[d] not been maintained by the County or used by

the public,” the County’s “use and improvement of only a part of [a] dedicated

property does not constitute an abandonment of the balance of the property.”


6
      See TEX. TRANSP. CODE ANN. ch. 258 (Vernon 2013).

                                         5
Further, a public road does not depend upon its length or upon the places to which

it leads, nor upon the number of persons who actually travel upon it. The County

also emphasized that Mattox and Wilkerson had never been assessed taxes on the

portion of the lots set aside as a dedicated roadway.

      The County also moved for a summary judgment on Mattox and

Wilkerson’s affirmative defenses, asserting that there is no evidence that Mattox

and Wilkerson are “good faith purchasers for value and, therefore, not subject to

any easements or dedications”; the County violated the recording statutes; or the

County fraudulently “changed the length of Hill Forest Lane on the [map] after the

time period for filing a jury of view had passed.” 7

      To its motion, the County attached, as its summary-judgment evidence, the

subdivision plat, dated May 9, 1966; a Warranty Deed, dated May 20, 1966; an

abstract of lots 35 and 36; the statutory protest form, 8 scale legend, map, and

Resolution; Mattox and Wilkerson’s discovery responses; various correspondence

and photographs; the minutes of the commissioners’ court meetings of July 5,

2006, August 14, 2006, June 11, 2007, September 13, 2010, and February 19,

2014; and the affidavits of Clifford and Eleanor Jackson, former county road

commissioner Frank Glass, and Hill Forest Manor Subdivision property owner Lee

Roy Peterson.
7
      See TEX. TRANSP. CODE ANN. § 258.002(b) (Vernon 2013).
8
      See id.

                                           6
      In their response to the County’s matter-of-law summary-judgment motion,

Mattox and Wilkerson argued that because a fact issue exists as to whether the

134-foot strip at issue constitutes a “public road,” summary judgment was

precluded. They explained that in 2005, they purchased the lots from John Besaw,

who, in 1991, had built across the 134-foot strip a white-board fence, planting two

pear trees behind it to keep people from turning around on his land. In fact,

Clifford Jackson, in 1998, had asked Besaw to open part of the fence so that he

could temporarily move a travel trailer onto his land while he built his home.

Mattox and Wilkerson noted that the Jacksons’ property is not a part of the

subdivision and they had other county-road access to their property.

      When Mattox and Wilkerson purchased their lots, Besaw’s white board

fence ran along and across Hill Forest Lane. It had two entrances to the lots on the

north side, both parallel to the road, and one entrance “at the west dead-end of the

road,” extending across the 134-foot strip. The branches of the two pear trees

spread out over the opening in the fence, across the 134-foot strip. There was

“junk all over the property,” including a “mobile home that needed to be torn

down.” After they had purchased their lots, Mattox and Wilkerson had to haul six

trailer-loads of “junk” from them, including a load from the area west of and

directly behind the pear trees and fence across the 134-foot strip. The grass and

vines in the area of the fence and pear trees were so thick that machetes had to be



                                         7
used to cut back the underbrush to reach the “junk,” which included “tires, rims,

metal pipe, old carpet, concrete, old suitcases, metal fence, old machinery, big

limbs, tractor parts and tires, glass, [and] batteries.”

      Mattox and Wilkerson, in their response, did not dispute that “the roads in

Hill Forest Manor subdivision were dedicated on the plat” or that a road “was

conclusively established” by the County’s statutory adoption of the map. 9 Rather,

they asserted that the plat does not expressly state the length of Hill Forest Lane,

the pertinent statute required the County to provide its length, 10 and the County’s

own records show that Hill Forest Lane is only 1298.025 feet in length. They

further asserted that, when actually measured, 1298.025 feet is the distance from

the easternmost end, at Aldredge’s gate (taking into account the 119 feet the

County vacated in 2006), to the their white board fence and pear trees. Thus, the

public interest in Hill Forest Lane, as conclusively established by the map,

terminated at the white board fence. And there remains a fact issue regarding

whether the 134-foot strip of land from the peach trees westward to the eastern

boundary of the Jacksons’ property constitutes part of Hill Forest Lane.

      Mattox and Wilkerson further asserted that “at no time was Hill Forest Lane

or any roadway built or maintained, either privately or publicly, all the way to the

western boundary line of [lot 36 and the subdivision].” And they noted that the
9
      See TEX. TRANSP. CODE ANN. § 258.003 (Vernon 2013).
10
      See TEX. TRANSP. CODE ANN. § 258.002(d).

                                            8
County had previously concluded that it had not maintained the eastern end of Hill

Forest Lane for 35 years and it had abandoned the eastern end. They asserted that

the County had similarly never maintained the western end.

      Mattox and Wilkerson attached to their response, as their summary-

judgment evidence, the subdivision plat and original Warranty Deed; an abstract of

lots 35 and 36; the statutory protest form, scale legend, map, and resolution;

minutes of the commissioners’ court meetings of July 5, 2006, August 14, 2006,

June 7, 2007, September 13, 2010, and February 19, 2014; their responses to the

County’s interrogatories; a map obtained from the County’s “9-1-1 coordinator’s

office”; a letter from Sam Nobles at the Grimes County Road and Bridge

Department; and the affidavits of Mattox, Besaw, and County Commissioner Bill

Pendley.

      Mattox and Wilkerson also moved for summary judgment on their

affirmative defenses, asserting that they, as a matter of law, were “good faith

purchasers for value and, therefore, not subject to any easements or dedications,”

and the County had violated the recording statutes and changed the length of Hill

Forest Lane. They further asserted that they had no actual or constructive notice of

a road over the lots and, while inspecting the lots before purchase, Mattox had

gone to the county clerk’s office and viewed the subdivision plat, which showed

only two unnamed roads, both sixty feet wide, without any length measurements.



                                         9
Upon actually driving into the subdivision, Mattox and Wilkerson noted that both

the eastern and western ends of Hill Forest Lane “stop[ped] way short of the

[s]ubdivision’s east or west boundary line.” And “[t]here was nothing visible to

them [that] would have excited their suspicions regarding the existence of any

easement, road or road dedication behind the white board fence and two pear trees”

that extended across the 134-foot strip. Moreover, Besaw had told Mattox and

Wilkerson that he “owned all of the land” and “had put up the fence and planted

the two pear trees in 1991 to stop people from driving on his land.” To their

motion, Mattox and Wilkerson attached various deeds, photographs, satellite

images, and correspondence; a road-length diagram; the minutes of the June 7,

2007 commissioners’ court meeting; and the affidavits of Mattox and Besaw.

      In its response to Mattox and Wilkerson’s summary-judgment motion, the

County asserted that there is “no evidence” to support their affirmative defenses. It

argued that Mattox and Wilkerson could not have been good faith purchasers for

value because they “ha[d] admitted they had actual notice of the existence of the

[Hill Forest Lane], as shown on the plat of [the subdivision], prior to their

acquisition of” the lots. Further, they had constructive notice of the existence of

Hill Forest Lane because it is pictured on the recorded plat of the subdivision and

the deeds in Mattox and Wilkerson’s chain of title reference the plat. Although the

recorded plat does not state the overall length of Hill Forest Lane, the



                                         10
measurements of the lots abutting it are listed on the plat. Further, there is “no

evidence” that it had violated the recording statutes. The County also argued that

Mattox and Wilkerson were “estopped from denying the validity of the plat

because they ha[d] admitted its validity in prior lawsuits.”

      In their reply, Mattox and Wilkerson asserted that although they, “[o]ver the

years,” had “advanced several theories for why they should be able to erase any

claim that [the County] may have in its own capacity or as the steward of a public

interest in the disputed dirt,” they had “never deliberately, clearly and

unequivocally,” as is required to support a judicial admission, “stated or intimated

that they believed in, or acknowledged the validity of, the original June 1966 plat.”

      The trial court granted the County summary judgment and declared that Hill

Forest Lane, as shown on the plat, except for the easternmost 119 feet that the

County had previously vacated, is a “public road” and Mattox and Wilkerson, by

“obstructing” Hill Forest Lane, had created a nuisance.             The trial court

permanently enjoined Mattox and Wilkerson from obstructing the public’s use and

the County’s maintenance of Hill Forest Lane, and it granted the County the right

to remove “any and all obstructions.” It also awarded the County its costs. The

trial court further denied Mattox and Wilkerson’s summary-judgment motion on

their affirmative defenses.




                                          11
                              Standard of Review

      Declaratory judgments rendered by summary judgment are reviewed under

the same standards that govern summary judgments generally. Bowers v. Taylor,

263 S.W.3d 260, 264 (Tex. App.—Houston [1st Dist.] 2007, no pet.). We review a

trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all

evidence favorable to the non-movant, and we indulge every reasonable inference

and resolve any doubts in the non-movant’s favor.        Valence Operating, 164

S.W.3d at 661; Provident Life & Accident Ins., 128 S.W.3d at 215. If a trial court

grants summary judgment without specifying the grounds for granting the motion,

we must uphold the trial court’s judgment if any of the asserted grounds are

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied). And when, as here, both parties move for

summary judgment and the trial court grants one motion and denies the other, we

review the summary-judgment evidence presented by both sides, determine all

questions presented, and render the judgment that the trial court should have

rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d

643, 648 (Tex. 2004).




                                       12
      A party seeking summary judgment may combine in a single motion a

request for summary judgment under the no-evidence standard with a request for

summary judgment as a matter of law. Binur v. Jacobo, 135 S.W.3d 646, 650–51

(Tex. 2004). When a party has sought summary judgment on both grounds and the

trial court’s order does not specify its reasons for granting summary judgment, we

first review the propriety of the summary judgment under the no-evidence

standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see

also TEX. R. CIV. P. 166a(i). If we conclude that the trial court did not err in

granting summary judgment under the no-evidence standard, we need not reach the

issue of whether the trial court erred in granting summary judgment as a matter of

law. See Ford Motor Co., 135 S.W.3d at 600.

      To prevail on a no-evidence summary-judgment motion, the movant must

establish that there is no evidence to support an essential element of the no-

nmovant’s claim on which the non-movant would have the burden of proof at trial.

See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant

to present evidence raising a genuine issue of material fact as to each of the

elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

582 (Tex. 2006); Hahn, 321 S.W.3d at 524.




                                       13
      In a matter-of-law summary-judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and the trial court should grant

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A plaintiff

moving for summary judgment on its claim must establish its right to summary

judgment by conclusively proving all the elements of its cause of action as a matter

of law. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Kothari v.

Oyervidez, 373 S.W.3d 801, 806 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied). A defendant moving for summary judgment as a matter of law must

conclusively negate at least one essential element of each of the plaintiff’s causes

of action or conclusively establish each element of an affirmative defense. Sci.

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

                              Summary Judgment

      In their first issue, Mattox and Wilkerson argue that the trial court erred in

granting the County summary judgment on its nuisance claim because it did not

establish as a matter of law that Mattox and Wilkerson obstructed a “public road.”

      “[A] nuisance [is] a condition substantially interfering with the use and

enjoyment of land by causing unreasonable discomfort or annoyance to persons of

ordinary sensibilities attempting to use and enjoy it.” Maranatha Temple, Inc. v.

Enter. Prod., Co., 893 S.W.2d 92, 98–99 (Tex. App.—Houston [1st Dist.] 1994,



                                        14
writ denied). To prevail on a cause of action for nuisance per se, a plaintiff must

establish that the defendant’s activity (1) can be considered a nuisance at all times,

under any circumstances, and in any location, or (2) violates a state statute or

municipal ordinance declaring the activity to be a nuisance per se. Id. at 100.

      “A road that has been laid out and established according to law and that has

not been discontinued is a public road.” TEX. TRANSP. CODE ANN. § 251.002

(Vernon 2013). Under common law, a county may acquire a public interest in a

private road through the owner’s express or implied 11 dedication of the road for

public use. McCulloch v. Brewster Cnty., 391 S.W.3d 612, 616 (Tex. App.—El

Paso 2012, no pet.); see also State v. NICO-WF1, L.L.C., 384 S.W.3d 818, 821

(Tex. 2012) (“A street dedication is setting land apart for public use as a

passageway.”). Generally, an express dedication is made by a written instrument

or deed. Chaney v. Camacho, No. 04-12-00358-CV, 2013 WL 6533123, at *2

(Tex. App.—San Antonio Dec. 11, 2013, pet. denied) (mem. op.).                    “The

preparation and recordation of a map or plat showing streets or roadways does not,
11
      In 1981, the Texas Legislature abolished the common-law doctrine of implied
      dedication in counties with a population of less than 50,000, such as Grimes
      County. See TEX. TRANSP. CODE ANN. §§ 281.002(3), 281.003 (Vernon 2013);
      Hayes v. Anderson Cnty., 315 S.W.3d 170, 172–73 (Tex. App.—Tyler 2010, pet.
      denied). Section 281.003 does not, however, affect roads impliedly dedicated to
      public use before the August 31, 1981 effective date of the statute. See Act of
      June 1, 1981, 67th Leg., R.S., ch. 613, 1981 Tex. Gen. Laws 2412–13, amended
      by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025,
      1195–96; Scown v. Neie, 225 S.W.3d 303, 309–10 (Tex. App.—El Paso 2006, pet.
      denied).



                                         15
standing alone, constitute a dedication as a matter of law.” Gutierrez v. Cnty. of

Zapata, 951 S.W.2d 831, 839 (Tex. App.—San Antonio 1997, no writ). Rather, a

dedication must be established by a “declaration or act which evinces a clear and

unequivocal intention on the part of the owner to presently set aside and

appropriate a certain part of his land for use by the public.” Aransas Cnty. v. Reif,

532 S.W.2d 131, 134 (Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.). An

implied dedication is made when acts and conduct of a landowner induce a belief

that he intended to dedicate a road to public use and there is an offer and

acceptance of the dedication.     Chaney, 2013 WL 6533123, at *4 (“What the

landowner actually intended is not an element of implied dedication.”); see also

Baker v. Peace, 172 S.W.3d 82, 88 (Tex. App.—El Paso 2005, pet. denied). Any

structure placed in a dedicated street of a permanent nature, like a fence, that

interferes with the public’s present or future use of a dedicated street is an

obstruction and constitutes a nuisance per se. NICO-WF1, L.L.C., 384 S.W.3d at

824; see also TEX. TRANSP. CODE ANN. § 251.008(1) (Vernon 2013) (providing

public roads must be clear of all obstructions).

      Here, the County, in its summary-judgment motion, argued that Mattox and

Wilkerson created a nuisance because they obstructed the westernmost 134 feet of

Hill Forest Lane, which is a public road, by constructing a fence across the

roadway. The County’s summary-judgment evidence establishes that the plat of



                                          16
the subdivision shows that there is a road along the southern boundary of the

subdivision and lots 35 and 36, extending to the western boundary of the

subdivision and lot 36. Although the plat does not expressly state the overall

length of Hill Forest Lane, it does state the length of the frontage of each of the lots

abutting Hill Forest Lane. The plat also includes an express dedication, as follows:

             Bond Blackman Owner of the property shown subdivided in
      this plat, do[es] hereby make subdivision of same, according to the
      lines shown hereon and designate same as “Hill Forest Manor,” and
      do[es] hereby, dedicate to public use as such the roads shown hereon
      and do hereby waive any claims for damages occasioned by the
      establishment of grades as approved for the roads dedicated . . . .

      The County notes that although the plat is dated May 9, 1966 and the deed

conveying the subdivision property to Blackman is dated May 20, 1966, the

grantor, H.R. Turner, also signed the plat and Blackman adopted the plat by selling

lots with reference to it. Thus, Blackman was estopped as the holder of an after-

acquired title to deny the prior dedication. See Hous. First Am. Sav. v. Musick, 650

S.W.2d 764, 770 (Tex. 1983).

      The County asserts that it demonstrated acceptance of the dedication of Hill

Forest Lane by exempting the abutting lot owners from taxes on the land

comprising the roadway. Regarding Mattox and Wilkerson, the plat indicates that

each of their lots consists of 5.9077 acres, and Mattox and Wilkerson have been

assessed taxes on at total of 11.82 acres, which does not include the dedicated

roadway abutting the lots.

                                          17
      The County’s evidence also shows that in March 2007, it initiated formal

procedures, pursuant to chapter 258 of the Texas Transportation Code, to

“conclusively” establish Hill Forest Lane as a public road. See TEX. TRANSP. CODE

ANN. §§ 258.001–.007 (Vernon 2013). The Texas Legislature adopted chapter 258

to provide an expedited procedure to allow a county to preserve the existence of a

public interest in a road in which it might not otherwise be able to prove that such

interest had been established due to a lack of witnesses with firsthand knowledge

of the road’s genesis. Bastrop Cnty. v. Samples, 286 S.W.3d 102, 108 n.5 (Tex.

App.—Austin 2009, no pet.) (dicussing House Transp. Comm., Bill Analysis, Tex.

H.B. 1117, 78th Leg., R.S. (2003)). Chapter 258 does not create a new basis for a

county to establish a claim to a roadway; rather, it “merely establishes a procedure

whereby [a] county can clarify a public interest already in existence prior to

September 1, 1981.” Wallace v. Kent Cnty., No. 07-11-00427-CV, 2013 WL

4531253, at *3 (Tex. App.—Amarillo Aug. 21, 2013, no pet.) (mem. op.). And

chapter 258 only applies to a county that initiated or completed compliance with its

provisions before September 1, 2011. See TEX. TRANSP. CODE ANN. § 258.007.

      Pursuant to chapter 258, a county is permitted to adopt a “county road map

that includes each road in which the county claims the existence of a public

interest: (1) under Chapter 281 or other law; or (2) as a result of having

continuously maintained the road with public funds before September 1, 1981.” Id.



                                        18
§ 258.002(a). A person may appear before the county commissioners’ court or file

a written protest in a county court regarding the county’s claim of a public interest

in a road. Id. § 258.002(b). If a protest is filed, the commissioners’ court must

appoint a “jury of view” consisting of “five property owners who have no interest

in the outcome of the protest” to determine the validity of the county’s claim. Id.

Except as provided by section 258.004, a county road map adopted under section

258.002 constitutes “conclusive evidence” of: (1) the public’s right of access over

a road included on the map and (2) the county’s authority to spend public money to

maintain a road included on the map. Id. § 258.003. Section 258.004 allows a

person to “contest the inclusion of the road in the county road map by filing a suit

in a district court in the county in which the road is located not later than the

second anniversary of the date on which the county road map including the road

was adopted.” Id. § 258.004(a). A party need not first file a protest with the

commissioners’ court or county court before filing a lawsuit in a district court.

Samples, 286 S.W.3d at 109.

      It is undisputed that Mattox and Wilkerson did not protest or contest the

inclusion of any part of Hill Forest Lane, including the 134-foot strip of land at

issue, on the County’s road map. See TEX. TRANSP. CODE ANN. §§ 258.002(b),

258.004(a). Thus, the County’s road map constitutes “conclusive evidence” of the

public’s right of access over Forest Hill Lane and the County’s authority to spend



                                         19
public money to maintain it. See id. § 258.003; Coryell Cnty. v. Harrell, 379

S.W.3d 345, 348–49 (Tex. App.—Waco 2011, no pet.) (“Once a Chapter 258 map

is adopted, the map is conclusive evidence of the public’s right of access over a

road included on the map and the county’s authority to spend public money to

maintain such a road.”).

      Further, the County’s evidence includes photographs of the fence that

Mattox and Wilkerson, undisputedly, erected across the area at issue. Thus, the

County established as a matter of law that Mattox and Wilkerson placed a fence

across a dedicated public road, which constituted an obstruction and a nuisance per

se. See NICO-WF1, L.L.C., 384 S.W.3d at 824; see also TEX. TRANSP. CODE ANN.

§ 251.008(1) (providing public roads must be clear of all obstructions).

      Mattox and Wilkerson assert that their summary-judgment evidence

establishes that there are fact issues as to whether the 134-foot strip of land

between their white board fence and the Jacksons’ eastern property line is actually

a portion of Hill Forest Lane, a “public road.” However, they did not dispute in the

trial court that “the roads in Hill Forest Manor Subdivision were dedicated on the

plat” or the public interest in Hill Forest Lane was “conclusively” established by

the County’s statutory adoption of the County road map. See TEX. TRANSP. CODE

ANN. § 258.003. Rather, they asserted that section 258.002(d) required the County

to provide the length of Hill Forest Lane and the County’s own records show that it



                                         20
is only 1298.025 feet in length. They argue that because the distance between

Aldredge’s front gate and Mattox and Wilkerson’s white board fence and pear

trees is 1298.025 feet, when actually measured on the ground, Hill Forest Lane

necessarily terminates at their white board fence and pear trees, and not 134 feet

later, at the western border of lot 36 and the subdivision. Mattox and Wilkerson

assert, thus, that there remains a fact issue as to whether the 134-foot strip of land

constitutes part of Hill Forest Lane. And they further assert that there is a fact

issue as to whether the County has ever maintained the 134-foot strip at issue as a

roadway.

      “A public road does not depend upon its length. . . .” Baker v. Peace, 172

S.W.3d 82, 90 (Tex. App.—El Paso 2005, pet. denied).             Section 258.002(c)

requires a commissioners’ court to give notice of its intent to assert a public

interest in a road by “publish[ing] at least once a week in a newspaper of general

circulation in the county . . . a notice:      (1) advising the public that the

commissioners’ court has proposed a county road map including each road in

which the county claims the existence of a public interest; (2) identifying a

location at the courthouse at which the proposed map will be available to the

public during regular business hours; and (3) stating the date and location of the

public meeting.” TEX. TRANSP. CODE ANN. § 258.002(c). The commissioners are

then required to “display the proposed map at the location and during the time



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described in the notice from the date on which notice is first published through the

date on which the commissioners’ court formally adopts the proposed map.” Id.

§ 258.002(d). “The map must be legible, and the map scale must be that not less

than one inch equals 2,000 feet.” Id.

      Thus, section 258.002(d) requires that a “legible map,” i.e., one with a scale

of “not less than” one inch equals 2,000, feet be displayed. See id. Nothing in

section 258.002(d) required the County to attest to a precise road length, separately

from reference to the plat. And nothing in the summary-judgment evidence that

Mattox and Wilkerson direct us to—the statutory protest form, scale legend,

minutes of the commissioners’ court meetings, map, or resolution—states that the

County sought to assert a public interest in Hill Forest Lane as a road of only

1298.025 feet in length.

      Mattox and Wilkerson assert that the County’s own records—a letter signed

by Sam Nobles of the Grimes County Road and Bridge Department and a portion

of a map that Mattox obtained from the County’s “9-1-1 coordinator’s office”—

establish that Hill Forest Manor is 1298.025 feet long. Nobles, in his March 18,

2009 letter to Mattox, did write, “Hill Forest Lane is a county maintained road

located in . . . the Hill Forest Manor Subdivision. Hill Forest Lane is 1298.025 feet

long.” And attached to his letter is a list of county and private roads, and on the

list it is noted that Hill Forest Lane is a “dirt” road of 1298.025 feet. The section



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of the map that Mattox obtained from the County’s “9-1-1 coordinator’s office”

shows that Hill Forest Lane, east of Mata Road, is 871.202 feet long, and, west of

Mata Road, 426.812 feet long, with an overall length of 1298.025 feet.

      “The county road department is responsible for the construction and

maintenance of county roads.” TEX. TRANSP. CODE ANN. § 252.302(a) (Vernon

2013). That the County has actually constructed or is actually maintaining only

1298.025 feet of dirt road as Hill Forest Lane does not constitute evidence that the

total roadway dedicated in the original plat in 1966 was only 1298.025. Rather, the

plat appears to show that the length of Hill Forest Lane, west of Mata Road, is

approximately 1000 feet.

      Generally, the rule is that the opening up of a dedicated street for the greater

part of its length by a municipality constitutes an acceptance of the whole of the

street as dedicated, in the absence of anything to show a contrary intent, and the

fact that a portion of the street is not capable of being traveled does not militate

against acceptance. Town of Palm Valley v. Johnson, 17 S.W.3d 281, 287 (Tex.

App.—Corpus Christi 2000, pet. denied) (holding entire length of street as

originally platted accepted as public street, even though four-foot section of street

not paved). And a “county’s decision to delay maintenance until the roads are

constructed does not constitute non-acceptance.” See e.g., Kunefke v. Calhoun

Cnty., No. 13-05-006-CV, 2006 WL 1553261, at *4 (Tex. App.—Corpus Christi



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June 8, 2006, no pet.) (mem. op.). Mattox and Wilkerson did present evidence that

the County has not yet maintained the westernmost 134 feet of Hill Forest Lane;

however, the County did not seek to establish that Hill Forest Lane is a public road

based on maintenance. See TEX. TRANSP. CODE ANN. § 258.002(a) (allowing

establishment of public road (1) under Chapter 281 or other law, or (2) as a result

of having continuously maintained the road with public funds before September 1,

1981).

      Taking as true all evidence favorable to Mattox and Wilkerson, and

indulging every reasonable inference in their favor, as we must, we conclude that

the County conclusively established its nuisance claim. Accordingly, we hold that

the trial court did not err in granting the County summary judgment.

      We overrule Mattox and Wilkerson’s first issue.

                               Affirmative Defenses

      In their second issue, Mattox and Wilkerson argue that the trial court erred

in denying them summary judgment on their affirmative defense that they are

“bona fide purchasers for value” because they “took their property without

knowledge of the existence of a road across the southern boundary of their land.”

      A bona fide purchaser is one who acquires property in good faith, for value,

and without notice, actual or constructive, of any third-party claim or interest. See

Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). Actual notice results from



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personal information or knowledge; constructive notice is notice the law imputes to

a person not having personal information or knowledge. Id.; Hahn v. Love, 394

S.W.3d 14, 31 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

       An instrument that is properly recorded constitutes notice to all persons of

the existence of the instrument. TEX. PROP. CODE ANN. § 13.002(1) (Vernon

2014). It is well settled that a purchaser is “bound by every recital, reference, and

reservation contained in or fairly disclosed by an instrument which forms an

essential link in the chain of title under which he claims.” Westland Oil Dev.

Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982). The rationale behind

the rule is that

       any description, recital of fact, or reference to other documents [in an
       instrument] puts the purchaser upon inquiry, and he is bound to follow
       up this inquiry, step by step, from one discovery to another and from
       one instrument to another, until the whole series of title deeds is
       exhausted and a complete knowledge of all the matters referred to
       and affecting the estate is obtained.

Id. (quoting Loomis v. Cobb, 159 S.W. 305, 307 (Tex. Civ. App.—El Paso 1913,

writ ref’d)),

       Here, Mattox and Wilkerson admitted that before they purchased the lots,

they inspected the plat of the subdivision on file in the county clerk’s office.

Because the plat shows Hill Forest Lane extending to the western border of the

subdivision and lot 36, Mattox and Wilkerson had actual knowledge of the

existence of the road.

                                         25
      Mattox and Wilkerson assert that the plat cannot serve as notice because

only “an instrument that is properly recorded” can serve as notice and the plat was

“not authorized to be recorded.” They further assert that the pertinent law in 1966

required that a subdivision plat include the dimensions of all streets. See TEX.

REV. CIV. STAT. ANN. art. 6626a (Vernon 1969). As discussed above, however, the

plat does state the dimensions of Hill Forest Lane. It states, expressly, that Hill

Forest Lane has a width of 60 feet, and the length of Hill Forest Lane can readily

be determined by simple math, by reference to the measurements of the fronts of

the abutting lots.

      We conclude that Mattox and Wilkerson did not conclusively establish their

affirmative defenses. See Cathey, 900 S.W.2d at 341. Accordingly, we hold that

the trial court did not err in denying them summary judgment.

      We overrule Mattox and Wilkerson’s second issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Bland, and Brown.




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