A recent San Antonio Court of Appeals case, Holly v. Newberry Ranches of Texas, offers a good overview of the law surrounding dedication of public roads. [Read opinion here.]
The Hollys own 1,500 acres in Val Verde County. This property was acquired from two deeds, one in 2004 and one in 2005. Both deeds reference “a county-maintained gravel road” known as Arledge Road. In 2012, the Hollys protested the inclusion of Arledge Road in the Val Verde County Road map. As part of that protest, a jury of view issued a report declaring Arledge Road was not a county road and recommended it be removed from the county road map. (A jury of view consists of 5 property owners with no interest in the outcome of the protest to hold a public hearing, examine evidence, and issue a report on whether the road is a county road.) Following that, the Val Verde County Commissioner’s Court adopted the report and ordered Arledge Road removed from the county road map.
In 2017, Newberry Ranches purchased a 10,000 acre ranch that abuts Arledge Road, which is the primary means of access to the ranch. A little over a year later, the Hollys changed the locks on the gate and would not provide Newberry Ranches with a key.
Newberry Ranches sued the Hollys seeking a declaratory judgment that Arledge Road is a public road and Newberry Ranches has a residual easement over the road. Shortly thereafter, Newberry Ranches was granted a temporary restraining order, and the Hollys were required to remove the locks on the road or to provide keys/combinations to Newberry Ranches for any remaining locks. The trial court later granted summary judgment to Newberry Ranches, finding that Arledge Road was a public road, and that Newberry Ranches had a residual easement over the road. The judge issues a permanent injunction preventing the Hollys from barring Newberry Ranches’ use of the road. After a bench trial, the court also awarded Newberry Ranches over $62,000 in attorney’s fees and costs.
The Hollys appealed.
A public road may be established by dedication of a private road for public use. A dedication may be made by common law or by statute. Common law dedications may either be express or implied. Importantly, in August 1981, the Texas Legislature abolished the implied dedication as a means for establishing a road on private property was a public road, however, that statute was not retroactive, meaning it does not apply prior to 1981.
Thus, prior to 1981, an implied dedication arises when there is some act or course of conduct from which the law will imply an intent to dedicate the road as public. In order to prove an implied dedication, a party must show: (1) a competent landowner’s acts induced a belief they intended to dedicate a road for public use; (2) the public relied on those acts and will be served by the dedication; and (3) there was an offer and acceptance of the dedication. The donative intent “may not be inferred from evidence that shows only that the public used the road for a long time without the owner’s objection.” However, if “the origin of the land use and the ownership of the land at the time it originated cannot be shown, one way or the other, due to the lapse of time” then evidence of long and continued public use creates a presumption of dedication by the owner so long as there is some evidence of an additional factor implying a donative intent such as permitting the public authorities to grade, repair, or improve the roadway; selling parcels of land from a plat or plan showing the roadway as a means of access; an express representation by the road owner to a land purchaser that the road is reserved for public use; or fencing off the roadway from the remainder of the land.
San Antonio Court of Appeals Opinion
The San Antonio Court of Appeals reversed. [Read Opinion here.]
The initial question for the court was whether summary judgment evidence conclusively shows that there was an implied dedication of Arledge Road to the public before August 1981.
Presumption does not exist
Newberry Ranches did not present any evidence regarding the origin of the land use or the road. Instead, it relied on evidence of “long and continued use” prior to 1981 to raise a presumption of it being a county road. A Val Verde County Commissioner testified that he had personal knowledge to the road dating back to 1979 and, to his knowledge, it was never a county road. However, after reviewing post-1981 county maps, the Commissioner testified that the road “had been a public road within the property owners.” There was no clarification as to what that meant. A 60-year Val Verde County employee also testified that he was familiar with the road and considered it to be a public county road. The landowner from whom Newberry Ranches purchased the ranch testified that she was familiar with the road since 1968 and believed it was a county road.
The court found this evidence to be only conclusory assertions that lacked any evidence of long and continued use before 1981. They compared this testimony to another prior case where evidence indicated road use for over a century and testimony from people familiar with the road in the 1960s. Because Newberry Ranches failed to meet their burden of proof, there was not presumption of an implied dedication in this case.
Additional factor not present
Even if the presumption did apply, Newberry Ranches was required to prove an additional factor to imply donative intent such as permitting public authorities to grade, repair, or otherwise improve the roadway. While the county employee and prior ranch owner testified they personally observed maintenance on the road dating back to the 1960s and 1970s, the County Commissioner testified that Arledge Road was not regularly maintained by the county. In the jury of view report, the jury noted Val Verde County failed to establish continuous maintenance of the road prior to 1981.
Issues of fact remain
In light of this, the court held that Newberry Ranches failed to establish there was not issue of material fact as to an additional factor that implied a donative intent and, therefore, failed to establishe it was entitled to judgment as a matter of law based on Arledge Road being impliedly dedicated. Thus, the trial court erred in granting summary judgment to Newberry Ranches.
The next issue was whether a “residual” easement existed in favor of Newberry Ranches. Newberry Ranches argued that it conclusively established a residual easement because it purchased its ranch abutting the road and, therefore, acquired a property interest in it. The question, then, was whether Newberry Ranches obtained some type of easement over the road when it acquired its ranch property.
The court notes that Newberry Ranches does not claim there was any express easement granted, nor did they contend there was an implied easement, easement by necessity, easement by estoppel, or easement by prescription. Instead, they claim that their purchase of adjoining land next to a public road, this created an easement in their favor. But, as noted above, the court held there was insufficient evidence to grant summary judgment on whether Arledge Road was a public road, meaning that Newberry Ranches was not entitled to summary judgment on this easement claim based on that argument either.
In light of this, the court reversed and remanded the case to the trial court for further proceedings. The court also dissolved the permanent injunctive relief in favor of Newberry Ranches and the award of attorney’s fees and costs. Newberry Ranches filed a motion to reconsider, which was denied in early December. They could still appeal to the Texas Supreme Court, but nothing has been filed to date.
Do keep in mind here that the appellate court did not make any rulings on the merits of the case here–the court did not determine whether there was an implied dedication of the road. It merely ruled that there was insufficient evidence for the trial court to have acted on summary judgment. The case will now proceed through the discovery and trial process before the question of whether the road was dedicated will be answered.
This case offers a good overview of how a private road can become a public road through express or implied dedication. Being aware of the law on this topic is beneficial for rural Texas landowners.
Additionally, this illustrates a point I frequently make to landowners. If there is any situation where you are allowing someone to cross your property to access their own, or if you are using someone else’s property to access your own, it is critical that this right be put into writing and recorded in the deed records. Having an express, filed easement is the best way to protect both parties and ensure legal access to property in the future.