County did not abandon roadway and property owners’ erection of fence constituted nuisance per se

Gregory R. Mattox and Barbara Wilkerson v. Grimes County Commissioners’ Court, 01-14-00535-CV (Tex. App. – Houston [1st Dist.], August 27, 2015)

Mattox and Wilkerson own lots within a subdivision. They filed applications with the County to close a public roadway on the lots noting the County had abandoned the property. The County granted a different applicant’s request to a different part of the road but denied Mattox and Wilkerson’s requests. The County noted those sections were still in use and not abandoned. After various disputes, they constructed a fence across the road. The County sued alleging the fence was 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. Mattox and Wilkerson asserted the County never maintained that area of the roadway and therefore abandoned it. The trial court granted summary judgment for the County and declared the road public.

After a lengthy recitation of the evidence and record, the court noted the record clearly indicates the roadway was dedicated and public. It also indicates no evidence of abandonment by the County. The evidence clearly indicates Mattox and Wilkerson erected a fence blocking public access, which is a nuisance per se. Further 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.”

If you would like to read this opinion click here. Panel: Justice Jennings, Justice Bland and Justice Brown, Memorandum Opinion by Justice Jennings.  The attorney listed for the County is Jon C. Fultz.  The attorney listed for Mattox and Wilkerson is Gary L. Leonard.