County road “highway lore” insufficient to make private roadway public.

Wallace v Kent County, No. 07-11-00427-CV (Tex. App. – Amarillo, August 21, 2013)

This case involved a determination of whether a roadway is a private road or a public road by implied dedication and prescriptive easement.

Wallace owns a ranch in Kent County which borders County Road 440. The roadway is surrounded by Wallace’s ranch, is made of dirt, and does not intersect any other public road. Wallace previously allowed a neighboring family, the Lauderdales, to use the roadway to reach their residence even though the Lauderdale property was accessible via Highway 70. When the Laurderdale’s moved out, he fenced in the access with gates and cattle guards. On occasions Wallace placed a 10 foot tall berm to prevent access to the road, but County maintenance crews removed it (but repaid Wallace for the costs of construction). In 2008 the county attempted to include the roadway on its official map as a public road which began this dispute. The trial court declared the roadway to be a public road and Wallace appealed.

The court noted the County implicitly acknowledged Wallace’s right to control the property by paying him for the berm removal. The use by the Laurderdales was not adverse possession but contemporaneous with Wallace’s use. Further, after they moved, Wallace gated and locked the access area between road and property. In 1993, as part of a statewide 911 project, the Commissioner’s Court adopted a 911 map which did NOT show the road as public. Unfortunately for the County, there were no written records demonstrating when the roadway was considered part of the County inventory for maintenance and it was only treated that way because of word of mouth. However, the roadway was not on the regular maintenance schedule. It was noted for maintenance “when told to do so.”  There was testimony of sporadic use of the roadway by members of the public, but nothing more. Further, it was undisputed Wallace denied access to the roadway on numerous occasions. As a result, the court held “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.” Further, since the County was not able to provide written records of continuous maintenance it is not entitled to establish a public interest in the roadway. All that existed was “highway lore” passed by word of mouth from generation to generation. As a result, the court reversed the trial court’s declaration and rendered a decision the roadway was private.

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