Race v. State

66 S.W. 560, 43 Tex. Crim. 438, 1901 Tex. Crim. App. LEXIS 155

• Court: Court of Criminal Appeals of Texas
• Decided: December 18, 1901
• Docket: No. 2383.
• Status: Published

Opinions

BROOKS, Judge.

Appellant was convicted of obstructing a public highway, and his punishment assessed at a fine of $5.

It appears from the statement of facts that the road alleged to have been obstructed ran through the town of Neches, which had been laid out in lots and blocks. The road ran across the lots and blocks purchased by appellánt from the New York and Texas Land Company. This company had previously received a deed for said land from the International & Great Northern Railroad, but the deed of the conveyance was not shown; nor was it shown when the International & Great Northern Railroad acquired title. It was shown, however, that the road ran through the ground occupied by said lots for some twenty-five years or more, and that said road had been worked by hands allotted to work it by the Commissioners Court of Anderson County, and that the public had traveled and used it as a public road for as long as twenty years. There was no evidence of any condemnation proceedings as to said property for road purposes, nor was there any evidence that the owner or owners thereof had ever received any compensation. About April 30, 1901, appellant built a fence around the lots he had bought, which obstructed the public road running over the same. It is contended by appellant that the evidence is not sufficient to support the conviction, citing in support thereof Smith v. State (Texas Criminal Appeals), 40 Southwestern Reporter, 736. That case merely lays down the proposition that a mere permissive use for twenty years of a road over the land of another is not sufficient on which to base prescriptive right in the public to the road. That was not a case where the commissioners court had created the road a public one, and had assigned hands to work the road, and the same had been continuously used by the public for a series of years, as appellant seems to have concluded. Hence that case is not applicable here. The law with reference to the facts in this case has been thoroughly reviewed and discussed in the eases of Dodson v. State (Texas Criminal Appeals), 49 Southwestern Reporter, 78, and Ward v. State, 42 Texas Criminal Reports, 435, 1 Texas Court Reporter, 565, and we do not deem it necessary to add anything to what we there said. Under the authority of those cases, the judgment herein is affirmed.

Affirmed.