In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-11-00427-CV ________________________
BERT WALLACE, APPELLANT
V.
KENT COUNTY, TEXAS, APPELLEE
On Appeal from the 39th District Court Kent County, Texas Trial Court No. 1681; Honorable Shane Hadaway, Presiding
August 21, 2013
MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This case involves the determination of whether a ranch road designated as
“County Road 439” in Kent County is a private road or a public road. Bert Wallace,
Appellant, appeals the trial court’s declaratory judgment entered in favor of Kent
County, Appellee, declaring the road to be a public road, based upon jury findings of
“implied dedication to public use” and “prescriptive easement.” We reverse the judgment of the trial court and render judgment, in part, declaring the road in question to
be a private road owned by Wallace; and, we remand the case to the trial court for
further proceedings consistent with this opinion.
BACKGROUND
Wallace owns a ranch in Kent County that borders County Road 440. From its
intersection with County Road 440, the disputed road runs generally northward,
approximately 4 miles, to a point where it dead-ends immediately in front of a residence
owned by Mack Lauderdale. For nearly its entire length, the road is surrounded on both
sides by Wallace’s ranch. It does not intersect any other public roads. In places, it is a
well maintained one-lane ranch road, clear of vegetation from edge to edge; and, in
other places, it is a typical West Texas red dirt ranch road consisting of two tire paths
separated by vegetation. At County Road 440, there is a cattle guard with a “POSTED”
sign on the adjacent fence and there is a second gate located further up the road that is
also marked with a “POSTED” sign. There is a final gate where the road enters the
Lauderdale property.
Wallace’s family ranched the surrounding land in the 1920s. Wallace himself
leased the ranch in 1962 and eventually purchased it in 1972. After the ranch was
purchased, Wallace allowed the Lauderdale family to use the road to reach their
residence, even though the residence was accessible via a road to the north that
intersected Highway 70. Lauderdale maintains a mailbox at that intersection, as did his
mother before him. In the 1980s, Lauderdale’s mother moved from the residence to
town and, in 1990, Wallace installed the gates and cattle guards. The gate between the
2 Wallace and Lauderdale properties was usually locked except on weekends when
Lauderdale visited the property.
On occasions Wallace prevented any access to the disputed road by building a
10 foot tall berm across the road at its intersection with County Road 440. In 2004,
county road maintenance crews removed the berms. A dispute arose and Kent County
subsequently compensated Wallace for his cost of erecting the berms. Wallace rebuilt
the berms, but they were partially removed again to allow firefighters access to the
disputed road in order to fight a grass fire that threatened the Lauderdale property.
The controversy leading to this litigation commenced in 2008 when Kent County
initiated formal procedures, pursuant to Chapter 258 of the Texas Transportation Code,
to include the disputed road on the official County Road Map as a public road. 1 Wallace
initially sought to contest this inclusion by filing suit in district court pursuant to section
258.004(a). Kent County filed a cross-action for declaratory judgment pursuant to
Chapter 37 of the Texas Civil Practice and Remedies Code, seeking to declare the
“rights of the parties [regarding the road in question] arising under Texas common law,
and under Chapter 258.” 2 Prior to trial, the parties stipulated that the question of
attorney’s fees would be submitted to the court post-verdict and pre-judgment and at the
conclusion of a three day jury trial, the jury found: (1) Kent County continuously
maintained the disputed road with public funds, beginning before September 1, 1981;
(2) the county was entitled to a prescriptive easement prior to September 1, 1981, and
1 See TEX. TRANSP. CODE ANN. §§ 258.001-.007 (W EST SUPP. 2012). Throughout the remainder of this opinion, Chapters of the Transportation Code will be referred to as “Chapter ___” and the Code’s provisions will be referred to as “section ___” or “§ ___.” 2 See TEX. CIV. PRAC. & REM. CODE §§ 37.001 – 37.011 (W EST 2008).
3 (3) the county proved, by a preponderance of the evidence, that the road had been
impliedly dedicated to public use before September 1, 1981. Thereafter, the trial court
issued its Final Judgment declaring that the disputed road was a public road,
established by both implied dedication and prescription, and it authorized the county to
file a metes and bounds description of the road, including “sufficient land, where
reasonably available, for drainage ditches, repairs, and the convenience of the public” in
the Deed Records of Kent County. The judgment further ordered that Wallace “take
nothing” from the suit. This appeal followed.
In four issues, Wallace asserts: (1) there was insufficient evidence to include the
road on a county road map adopted by the Kent County commissioners’ court pursuant
to Chapter 258 of the Texas Transportation Code; (2) including the road on the county
road map amounted to an unconstitutional taking; (3) there was insufficient evidence to
charge the jury on prescriptive easement; and (4) there was insufficient evidence to
charge the jury on implied dedication. Because disposition of issues three and four
would pretermit the necessity of addressing issues one and two, logic dictates that we
address issues three and four first.
APPLICABLE LAW
I. ACQUISITION OF PUBLIC INTEREST IN A PRIVATE ROADWAY
A county with a population of less than 50,000 can only acquire a public interest
in a private road by: (1) purchase; (2) condemnation; (3) dedication; or (4) a court’s final
judgment of adverse possession. §§ 281.001 & 281.002. Prior to September 1, 1981, a
private road could be dedicated to public use by express or implied dedication. Kent
4 County is a county with a population of 50,000 or less. Therefore, because no one is
claiming that Kent County acquired a public interest in the disputed road by purchase,
condemnation, or express dedication, if a public interest in the disputed road was
acquired at all, it had to have been acquired pursuant to the common law principle of
implied dedication or adverse possession.
II. ABOLISHMENT OF ADVERSE POSSESSION AND COMMON-LAW MEANS OF ACQUIRING A PUBLIC INTEREST IN A PRIVATE ROADWAY
Effective September 1, 1981, the Texas Legislature abolished the common-law
doctrine of implied dedication of a public road in counties with a population of 50,000 or
less. See TEX. TRANSP. CODE ANN. §§ 281.001, 281.003 (WEST 2013), formerly
VERNON’S ANN. CIV. ST. art. 6812h, §§ 1, 4, and 6, enacted by Act of May 31, 1981, 67th
Leg., R.S., ch. 613, 1981 Tex. Gen. Laws 2412. Also effective September 1, 1981, the
Legislature similarly established that such a county could not establish adverse
possession 3 of property for purposes of establishing a public interest in a road by the
“(1) use of a private road by the public with the permission of the owner; or (2)
maintenance with public funds of a private road in which a public interest is not
recorded.” See TEX. TRANSP. CODE ANN. §§ 281.004 (W EST 2013), formerly VERNON’S
ANN. CIV. ST. art. 6812h, § 5, enacted by Act of May 31, 1981, 67th Leg., R.S., ch. 613.
Because this legislation was not retroactive, Las Vegas Pecan & Cattle Co. v. Zavala
County, 682 S.W. 2d 254, 256 (Tex. 1984), the existence of a public interest in a road
established by implied dedication or prescription prior to September 1, 1981 was not 3 Here, the trial court did not submit an issue on “adverse possession.” Instead, it couched the issue in terms of a “prescriptive easement,” the elements of which were, for purposes of this opinion, the same as the elements necessary to establish adverse possession. Throughout the remainder of this opinion we will refer to the county’s claim as a claim for a “prescriptive easement” or a claim for the establishment of a public interest by “prescription.”
5 affected. See McCulloch v. Brewster County, 391 S.W.3d 612, 616 (Tex.App.--El Paso
2012, no pet.); Hayes v. Anderson County, 315 S.W.3d 170, 173 (Tex.App.—Tyler
2010, pet. denied) (citing Scown v. Neie, 225 S.W.3d 303, 309-10 (Tex.App.—El Paso
2006, pet. denied)). See §§ 281.003 and 281.004. Accordingly, if a public interest in
the disputed road was acquired by implied dedication or prescription, it would have had
to have been acquired prior to September 1, 1981.
III. CHAPTER 258 – TEXAS TRANSPORTATION CODE
In 2003, the Texas Legislature adopted Chapter 258 to establish an expedited
procedure whereby a county could clarify the existence of a public interest in a road
where it might not otherwise be able to prove the establishment of that interest by
implied dedication or prescription due to the lack of witnesses with firsthand knowledge
and thereby lose the right to maintain what the county considers to be a public road.
Bastrop County v. Samples, 286 S.W.3d 102, 108 n.5 (Tex.App.—Austin 2009, no pet.)
(quoting House Transp. Comm., Bill Analysis, Tex. H.B. 1117, 78th Leg., R.S. (2003)).
Pursuant to Chapter 258, a county was 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.” § 281.002(a). The adoption of a
county road map under Chapter 258 is considered to be “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.” § 258.003.
6 Pursuant to section 258.002(b), a county has a valid claim concerning the
existence of a public interest in a road “if it provides written records or other information
documenting the county’s continuous maintenance of the road beginning before
September 1, 1981.” “Continuous maintenance” means grading or other routine road
maintenance before September 1, 1981, and continuing until the date of the protest. §
258.002(h). Accordingly, in addition to establishing that it had perfected an interest in
the disputed road by implied dedication or prescription prior to September 1, 1981, in
accordance with sections 281.003 or 281.004, Kent County was also required to provide
written records or “documentation”4 that it continuously maintained the road in question
since that date.
Contrary to the concerns expressed by Wallace in issues one and two, Chapter
258 does not create a new basis for a county to establish a claim to a roadway. As it
pertains to the facts of this case, it merely establishes a procedure whereby the county
can clarify a public interest already in existence prior to September 1, 1981.
A person asserting a private right, title, or interest in a road in which the
existence of a public interest has been asserted under Chapter 258 may contest the
inclusion of the road in the county road map by filing suit in a district court in the county
in which the road is located. § 258.004(a). In such a contested proceeding, the county
has the burden of proving that it has continuously maintained, as that term is defined by
section 258.002(h), the road in question. § 258.004(b). This proceeding is such a
contest.
4 To “document” means “to evidence by document; furnish documentary evidence.” Webster’s Third New International Dictionary (4th Ed. 1976).
7 IV. EASEMENTS BY PRESCRIPTION / ADVERSE POSSESSION
Prescriptive easements are not well-regarded in the law. Harrington v. Dawson-
Conway Ranch, Ltd., 372 S.W.3d 711, 716 (Tex.App.—Eastland 2012, pet. denied).
Such a claim must be established by “the open, notorious, hostile, adverse,
uninterrupted, exclusive and continuous use of the servient estate for a period of more
than ten years, and the absence of any of these elements is fatal to the prescriptive
claim.” Allen v. Allen, 280 S.W.3d 366, 377 (Tex.App.—Amarillo 2008, pet. denied); see
also Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979) (“To obtain a prescriptive
easement one must use someone else’s land in a manner that is open, notorious,
continuous, exclusive, and adverse for the requisite period of time.”) In addition, “the
owner of the subservient estate must have actual or constructive notice that there was
an adverse and hostile claim against the property.” Allen, 280 S.W.3d at 378.
“Otherwise, the use (especially if joint) is presumed to be permissive, and a permissive
use can never ripen into an easement by prescription.” Harrington, 372 S.W.3d at 718.
See Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987) (finding use of property with
owner’s express or implied permission or license will never ripen into a prescriptive
easement no matter how long the use continues). The party claiming the existence of
the prescriptive easement has the burden of proof to establish each element by a
preponderance of evidence. Boerschig v. Southwestern Holdings, Inc., 322 S.W.3d
752, 764 (Tex.App.—El Paso 2010, no pet.) (citing Tiller v. Lake Alexander Properties,
Ltd., 96 S.W.3d 617, 624 (Tex.App.—Texarkana 2002, no pet.)). See Brooks, 578
S.W.2d at 673. A public right-of-way by prescription can be established by showing an
uninterrupted use by the public under an adverse claim of right. County of Real v.
8 Sutton, 6 S.W.3d 11, 17 (Tex.App.—San Antonio 1999, pet. denied) (citing O’Connor v.
Gragg, 161 Tex. 273, 339 S.W.2d 878, 880-81 (1960)).
V. IMPLIED DEDICATION
Dedication is the act of appropriating private land to the public for any general or
public use. McCulloch, 391 S.W.3d at 616; Baker v. Peace, 172 S.W.3d 82, 87
(Tex.App.--El Paso 2005, pet. denied). Whether a public right-of-way has been
acquired by dedication is a question of fact. Linder v. Hill, 691 S.W.2d 590, 591-92
(Tex. 1985). Under common law, prior to September 1, 1981, a road could be created
by either express or implied dedication. McCulloch, 391 S.W.3d at 616. Therefore,
whether there has been an implied dedication of property is a question of fact. Id.
The elements of implied dedication are: (1) the acts of the landowner induced
the belief that the landowner intended to dedicate the road to public use; (2) he was
competent to do so; (3) the public relied on these acts and will be served by the
dedication; and (4) there was an offer and acceptance of the dedication. Linder, 691
S.W.2d at 592. Generally, in order to establish donative intent, more than an omission
or failure to act or acquiesce on the part of the owner must be shown. Baker, 172
S.W.3d at 88. Such evidence may include incidences of allowing public authorities to
grade, repair, improve, or fence off the roadway from adjoining property. Id. However,
evidence of a long and continued use of the disputed road by the public can raise a
presumption of dedication by the owner when the origin of the public use is “shrouded in
obscurity” and no evidence showing the landowner’s intent in allowing the initial public
use exists. McCulloch, 391 S.W.3d at 616.
9 Because an implied dedication results in the appropriation of private property for
public use without compensation to the landowner, which appropriation would otherwise
be prohibited under the Texas Constitution, a county bears a heavy burden when
attempting to establish an implied dedication. See TEX. CONST. art. I, § 17. See also
County of Real v. Hafley, 873 S.W.2d 725, 728 (Tex.App.—San Antonio 1994, pet.
denied). Therefore, in this case, we must determine whether Kent County established
that the origin of the disputed road was “shrouded in obscurity” and that from that time,
the road has been subject to long and continuous use by the public. McCulloch, 391
S.W.3d at 616.
VI. STANDARD OF REVIEW – DECLARATORY JUDGMENTS
Declaratory judgments are reviewed under the same standards as other
judgments. TEX. CIV. PRAC. & REM. CODE ANN. § 37.010 (W EST 2008).
VII. STANDARD OF REVIEW – SUFFICIENCY OF THE EVIDENCE
In conducting a legal sufficiency review, we must consider the evidence in the
light most favorable to the challenged finding, indulge every reasonable inference in
support of it; City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005), and credit
favorable evidence if reasonable jurors could while disregarding contrary evidence
unless reasonable jurors could not. Id. at 827. A challenge to the legal sufficiency will
be sustained when, among other things, the evidence offered to establish a vital fact
does not exceed a scintilla. 5 Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793
5 Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004).
10 (Tex. 2006). In addition, so long as the evidence falls within the zone of reasonable
disagreement, we may not invade the fact-finding role of the jurors, who alone
determine the credibility of the witnesses, the weight to be given their testimony, and
whether to accept or reject all or part of their testimony. Wilson, 168 S.W.3d at 822.
The final test for legal sufficiency must always be whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review; id., and,
generally, if an appellate court sustains a “no evidence” or “legal sufficiency” issue, the
appellate court must reverse and also render judgment. See In re State ex rel. K.D.C.,
78 S.W.3d 543, 551 (Tex.App.—Amarillo 2002, no pet.) (citing Chevrolet, Inc. v. Lewis,
709 S.W.2d 176, 176 (Tex. 1986)).
DISCUSSION
By his third issue, Wallace contends the evidence was insufficient to support the
jury’s finding that Kent County was entitled to a prescriptive easement in the disputed
road prior to September 1, 1981; and, by his fourth issue, he contends the evidence
was insufficient to support the jury’s finding that Kent County was entitled to an interest
in that road by implied dedication.
I. EASEMENTS BY PRESCRIPTION / ADVERSE POSSESSION
Here, Wallace testified he was never excluded from using the road and no
witness testified they ever did anything to prevent Wallace from using the road. After
the county removed the berms erected by Wallace to prevent others from using the
road, the county implicitly acknowledged Wallace’s right to control use of the road by
paying him compensation for the berms it destroyed. That Lauderdale, his business
11 invitees and family also used the road was not adverse but contemporaneous with
Wallace’s use. Permissive use of the roadway running over another’s property that is
contemporaneous with the owner’s use is not adverse use. O’Connor, 339 S.W.2d at
881. Accordingly, the county failed to offer any evidence on the element of adverse use
or any notice, actual or constructive, of a hostile claim against the property. See Allen,
280 S.W.3d at 377-78.
II. IMPLIED DEDICATION
Here, the testimony showed that Wallace’s family sold their ranch in 1926 and
leased it in 1962. At that time, Lauderdale’s mother and sister used the road with
Wallace’s consent. Lauderdale came down on weekends from Lubbock. The
Lauderdale family had travelled the road since he was six years old. In 1972, Wallace
bought back the ranch and continued to allow Lauderdale’s mother to use the disputed
road to travel to and from her residence. In the 1980s, Lauderdale’s mother moved to
town and, in 1990, Wallace installed the gates and cattle guards. The gate between the
Wallace and Lauderdale properties was locked almost every week and unlocked when
Lauderdale visited on weekends. After Lauderdale’s mother moved to town, David
Parker delivered propane gas to the Lauderdale property by using the disputed road
once or twice a year during the early 1980s through 1998. Prior to that, from the mid-
60s into the early 1970s, Parker’s father had delivered propane gas to Lauderdale’s
mother by using the road north of the Lauderdale residence that intersected Highway
70.
12 In 1993 and 1994, Conrad Buchanan, was involved in a statewide 911 project
that included Kent County. According to his testimony, his first task was to determine
which roads were public. In an effort to do that he drove every road in the county to
assure that he did not miss a structure. After his 911 map showing all public roads was
completed, the Kent County Commissioners Court voted to accept it. 6 His map did not
show the road in controversy as a county road.
Don Trammel, County Commissioner for Precinct 4 from 1983 until 2003,
testified the road in controversy was part of the county road inventory that was handed
off from generation to generation by word of mouth. There were no written records. In
1984, Wallace told J.B. Gibson, a county road employee, not to grade on the road.
Gibson later told Trammel that Wallace didn’t want the county on the road and Wallace
subsequently told Trammel the road was private. Trammel testified that, before
speaking with Wallace, he had no idea how many times a year the road was bladed by
the county, but, after speaking with Wallace, it was only graded two or three times.
Woody Byrd, County Road Superintendent between 1983 and 2009, testified he
was not given a map of the county roads but “just grew up knowing where roads were
basically.” He testified no written records were kept on the maintenance of roads or the
cost to maintain them. He indicated the road in controversy was part of the county road
inventory “to some degree,” i.e., it may have been bladed two or three times a year on
6 At trial, Tommy Stanaland, County Judge 1995-2000, testified that the county commissioners never formally adopted the 911 map however, the map was completed several months before he assumed office in 1994. Jim White, County Judge from 2010-2011, testified the 911 map attempted to coordinate the county’s 911 addressing system and identify all county roads. White also testified that, although the 911 map went through periodic revisions, the roadway in dispute was not added as a county road on the 911 map until after the county had completed its Chapter 258 proceedings. White also testified that, after a search of county records, he could not identify any county commissioners’ record adopting the original 911 map.
13 an as-needed basis, but not any regular basis. Albert Brown, blade operator for
Precinct 4 from 1999-2006, testified he bladed the road only five or six times in the six
years he worked for the county. Brown indicated the road was not on the same
maintenance schedule as other roads in the county. Instead, it was bladed on a “when
told to do so” basis.
Robert Graham, County Commissioner for Precinct 4 after Trammel from 2003-
2007, testified that, when he took over, Trammel told him where all the county roads
were located. There were no maps or written records. Graham “assumed” the road in
controversy was a county road because Trammel had it bladed. In 2004, he testified
Lauderdale called and wanted the road bladed to remove some berms erected by
Wallace to block the road. 7 Graham testified that, after he had the county road
maintenance crews remove the berms, Wallace called indicating he was going to sue
for damages. The Commissioners Court subsequently approved a payment to Wallace
for his cost of erecting the berms. Graham testified the payment was intended to keep
the county out of court.
Graham also testified the county subsequently removed berms a second time
when a grass fire threatened to destroy Lauderdale’s residence. Charles Arnold, blade
operator for Precinct 4 from 2006 to present, testified he removed the ends of the berms
to allow firefighters through to fight the grass fire. No payment was made to Wallace in
connection with the second berm-removal. Arnold also testified there was no scheduled
7 The berms were walls of earth approximately six or seven feet tall. Testimony was given that berms prevented access to the road and had to be removed in order to blade the road. Testimony also indicated Wallace did not ask permission to build the berms.
14 maintenance on the road and that maintenance was performed on an as-needed basis
once the berms had been removed.
Lauderdale testified he has requested road maintenance from County Road 440
up to his residence and the county bladed the road. He testified that, between 2000
and 2005, he cut locks on Wallace’s gates and once removed a cattle guard blocking
the road. Going in and out of his property on weekends, he also observed the road had
been bladed but didn’t know who did the work. At one point, a person leasing
Lauderdale’s grass was stopped by Wallace at a gate while the lessee was hauling
cattle. Wallace refused passage until the Sheriff convinced him to let the lessee pass in
order to avoid possible legal action if any calves were somehow injured.
Lauderdale also testified Wallace erected berms six or seven times and
interrupted county maintenance for two or more years. Although the county removed
the berms twice, Lauderdale removed the berms the remaining times and bladed the
road himself over a three year period. Byrd testified the county ceased maintaining the
road for a while due to the Wallace/Lauderdale controversy and stopped maintenance
altogether about a year before the Chapter 258 proceedings were commenced in April
2007.
The evidence of use prior to September 1, 1981, included testimony that Tommy
Stanaland travelled the road once as a child with this father to retrieve a lost bull and
that he had observed a county road maintainer on the road, that Lauderdale and his
family travelled the road (albeit with Wallace’s consent for a time), that county road
15 equipment was parked at the Lauderdale residence one weekend, and that Bob Byrd
travelled the road for a week in the 1940s when he was working as a cowpuncher.
Countering the implication of public use by virtue of the limited maintenance of
the road, there was also testimony that the county maintained other private roads on
occasion. Wallace also testified he and his father allowed Lauderdale’s mother to use
the road and cross their land until she moved to town. Lauderdale corroborated
Wallace’s account of his family’s use.
Based on this record, we find there is no evidence that either Wallace or his
predecessors in title ever induced the belief that a dedication of the road to public use
was ever intended or that the public relied on those acts and would be served by any
such dedication. The road simply leads from County Road 440 across Wallace’s land
for 4 miles and then dead-ends at the Lauderdale residence. Accordingly, we find that
no reasonable and fair-minded juror, properly instructed on the law applicable to implied
dedication, could possibly find that Wallace impliedly dedicated the road for public use.
Cf., for example, McCulloch, 391 S.W.3d at 617 (evidence that county regularly
maintained the roadway and that it was used by commercial enterprises, families going
back and forth, children going to and from school, emergency management
coordination, and forest service crews); Las Vegas Pecan & Cattle Co., 682 S.W.2d at
256-57 (uncontroverted evidence that general public used road over thirty years as a
mail route, school route, and county maintained road with county employees and
equipment); Linder, 673 S.W.2d at 616 (road was only route to public school); Graff v.
Whittle, 947 S.W.2d 629, 636 (Tex.App.—Texarkana 1997, pet. denied) (road used to
reach a store, catch a bus, transport goods to town, go to church and school and was
16 the only path of ingress and egress from one community to another). Instead, all we
have is testimony of incidental use by a rancher who travelled the road once to retrieve
a stray bull, a cowpuncher who used the road for a week when he was employed by a
landowner bordering the road, and the Lauderdale family who used the road with
Wallace’s permission.
III. CONTINUOUS MAINTENANCE
Even if Kent County were able to establish a prescriptive easement or implied
dedication of the disputed road prior to September 1, 1981, we also find there is no
evidence Kent County asserted any valid claim of the existence of a public interest in
the disputed road because the county failed to come forward at trial with any “written
records or other information documenting” the road’s continuous maintenance since
before September 1, 1981. Byrd, County Road Superintendent from 1983 through
2009, testified Kent County kept no records on road maintenance or the cost of
maintaining any particular road. The only evidence that road maintenance was
performed prior to 1983 was anecdotal information or “highway lore” passed down from
commissioner to commissioner by word of mouth from generation to generation.
Although Chapter 258 was enacted to assist counties to prove up a public interest in
roads, we cannot ignore Chapter 258’s plain language. Thus, we find the record
contains no documentation of continuous maintenance or the expenditure of public
funds to maintain the disputed road beginning before September 1, 1981.
17 CONCLUSION
Wallace’s third and fourth issues are sustained and his first and second issues
are pretermitted. See TEX. R. APP. P. 47.1. We reverse the judgment of the trial court
and render judgment, in part, declaring the road in question to be a private road owned
by Wallace and that Kent County take nothing by its declaratory judgment action.
Because the trial court has not addressed Wallace’s prayer for the recovery of
attorney’s fees pursuant to this disposition, we remand the case to the trial court for
Patrick A. Pirtle Justice
.