Opinion
No. 3635.
January 17, 1929.
Appeal from District Court, Upshur County; J. R. Warren, Judge.
Suit for Injunction by Della Green and husband against J. A. Adkinson. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.
Appellees F. S. Green and his wife, Della Green, lived on land owned by the latter, lying south of and adjoining land owned by appellant, J. A. Adkinson. This suit by appellees as plaintiffs was for a writ of injunction restraining appellant from interfering with them in the free use of what they claimed was a road extending north and south across his land, and requiring him to remove fences they claimed he had constructed across such road. The appeal is from a judgment rendered May 10, 1928, making permanent a mandatory injunction theretofore granted requiring appellant to remove such fences and "erect gates at the exit and entry" of the road claimed over his land.
The trial court found, as a "matter of history," "that for many years there was a public road running from the town of Gilmer in a northwesterly direction, known as the Old Cherokee Tract Road. That said road has been maintained as a public road for fifty years or more. That as a matter of history this road was built along what was known as the Old Indian Trail traveled by the Cherokee Indians when they were located in Nacogdoches County in their visits to the northern tribes," and then found as facts established by the evidence heard by him: (1) That said Cherokee Tract Road ran through appellant's land at about the place appellees claimed a road existed until 12 or 15 years before the trial, when it was changed to run east along the north boundary line of appellant's land instead of south on and across it. No action of the commissioners' court with reference to such change was shown, but it appeared that in recent years a majority of the public and the school bus traveled the road as changed. (2) That about 12 years before the trial a fence was placed across the road as claimed by appellees, at the south side of appellant's land, and same was thereby "closed for approximately a year." That 11 years before the trial gates were "placed In the fence at both the north and south sides" of appellant's land, and that continuously thereafter the public used the road until appellant closed it about April 18, 1928. That about 2 years before the trial appellant offered to remove the gates if F. S. Green would build a fence on each side of the road as claimed, and that said F. S. Green did build such a fence. (3) That about April 18, 1928, appellant, without any notice to appellees or the public, removed the fence constructed by F. S. Green and built a fence across the claimed road at both the place where it entered upon his land and at the place where it left same, and in that way prevented the use of the claimed road by appellees and the public. On facts as found by him, the court concluded "that the general public (quoting) had acquired a right by prescription to the use of the road in question, and that defendant's (appellant's) act in closing same was unlawful," and concluded further that "inasmuch (quoting) as the prescription right was acquired over said road while the same (or a greater part of the time) was gated, that it would be a sufficient compliance with the order granting the injunction if defendant would place gates at both sides of the premises for egress and ingress over said road of the kind provided by law for gates on public roads of the third class."
T. H. Briggs, of Gilmer, for appellant.
Florence Florence, of Gilmer, for appellees.
Appellant insists the conclusion that a road over his land existed by prescription was not warranted by the evidence, and that the trial court therefore erred when he rendered judgment in appellees' favor of, that ground. It is urged that it appeared the use made of the claimed road was permissive on appellant's part, and that a prescriptive right could not be based on such use of land as a road. So far as the contention is as to the law applicable, it is clear it should be sustained, for "adverse, continuous and uninterrupted use for ten years" is held to be indispensable to the existence of an enforceable right to use land as a road by prescription. International G. N. Ry. Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S.W. 714, and Evans v. Scott, 37 Tex. Civ. App. 373, 83 S.W. 874, where many authorities are cited in a rather full discussion of the principle. And we think the contention also should be sustained so far as it is as to the evidence, for, as we understand it, the evidence indicated that the use made of the land as a road was permissive and not adverse. The only evidence, which reasonably could be construed as tending in the least to show that the use of the land was under a claim of a right to so use it, was that showing that 25 or more years before the trial the "Old Cherokee Trace Road" ran over the land at or near the place where the claimed road ran over same. Any probative effect that testimony might otherwise have had was overcome, we think, by uncontradicted evidence showing the "Old Cherokee Trace Road" to have been so changed 25 years before the trial as to run around instead of over appellant's land. The evidence strongly indicated that during the 17 or 18 years appellant had owned the land the right to use the claimed road was never on the theory of a continued existence of the "Old Cherokee Trace Road," but always on the consent of appellant to such use.
The judgment will be reversed, and the cause will be remanded to the court below for a new trial.