ORDER NO. ~ 199:L AitTHpRI7,ATI~:?N OF? TEiF COt..JNTY ATTORNk;Y' S OFFICE TO DO A rERTIF~Ik~D LFTTHR TO MR~ SI'F'.NR1~1TIi F'OR KOTT ~.L.~1.NF; On t.hi.^ thF> 3rc:3 d-~y of Mr~y ]..994, upon motion made by C'.~}mxni~~.~;i.r~nf°r Ho.lfkami?, scar„andF~c:j by Camzni.~~w,ionf~r Oehler, the r'r>>.a.1-i- unanimously approved by a vote of 4-0-0, to ~~.zthorizF> tt-ie County 1~.t;torney' s Office to wri.t~, a latter t.o Mr . ~pF~nrath aciv i~ ing t~ im that Kc>tt I.,.~ne i <, a county ro~i~i n sF~d by the p~.~t~.l:it~ ~~nci t.hc'r.F> .houlct nflt ~~e any lor,ks ol~structina the e~ntr.,=~nc~e of the-, r~a~i3, 'I~cws 78028-532i 1~I.sPxoNS (210) 896.5338 Fwx (210) 896-0504 DA V m M. MOTI.SY, CouMV wrrawsr Ills D. BAILBY, AS9mMR caouxrr ArIUNNIiY HAROLD J. DANIORD, As9m~N1' Gbuxnr Arrowa,Y To: Glenn Holekamp, County Commissioner Precinct #3 From: Ilse D. Bailey, Assistant County Attorney Date: April 8, 1994 Re: Joe Biermann's road easement You have asked me to look at the law regarding the roa3 easement which Mr. Biermann uses to get to his property with regard to determining whether it is a county road, and if so, whether we should abandon our rights to the road, and what effect that would have on the respective property rights involved. As I understand the facts, the road easement that is laid out as follows: MARTIN ~R~>f ~DPIE 61~N is an unpaved roadway w~ I LSoN CKk Qp, RI4UL • c QED DORI~DD , -- _ ~ i i _,_ _' ~ ~ 1 ~ ' , ^ t ~ ` DAN ----,-- --- ______-% 3P~~ 11 t Gi4E~1~ 1 ~'~'J~ ~ t 1 1 ~ 1 CATTLE ~ ~ Ran bVARD ~ EASEMENT' ~ 6Al'ET Mr. Biermann has told us that he has witnesses (former county commissioners) who would testify that the road was at one time maintained by the county, and that it is therefore presumably a county road. Mr. Biermann's concern has arisen because one of the other property owners along the roadway has recently placed a gate across the road. Mr. Biermann has therefore asked us to clarify whether the county wishes to retain or abandon that roadway, since our answer to this inquiry will determine his course of conduct with respect to the gate. In that regard, please consider the following: If the road is indeed a county road, Mr. Biermann is correct that the county can prohibit the other owner from obstructing the roadway with his gate. As far as I can determine, this road is not part of the unit road system, so in order for it to be a county road, it must have become one by dedication or prescription. A county road may be established by prescriptive easement if it has been used by the public for more than ten years, where the use has been continual, open and adverse, along fixed route. A pattern of continued county maintenance of the road is relevant to the issue of whether a prescriptive easement has been established. Love v. OZguin, 572 S.W.2d 17 (Tex. Civ. App.--E1 Paso 1978, writ ref'd n.r.e.). County maintenance is also relevant to determine the question of whether there has been a dedication of the road to the public. There are deed records that appear to support the establishment of at least part of the road as a public road. While the court may make an administrative decision as to this question, the final determination of the question would have to be made by a district court. Even if we were to find that the road was not a county road, it would not preclude a district court from finding that it was. A county need not take any specific action with respect to a road for it to be judicially found to be a county road, and the commissioners' court's refusal to recognize the road as public does not preclude a district court from finding an easement in favor of the public. Evans v. Scott, 83 S.W. 874 (Tex. Civ. App. 1904, no writ). There are various alternatives open to the commissioners court with respect to this road. The court could rule that the road is an unmaintained county road, which would then put the county in a position of being able to require that the gate across the road be removed. The commissioners' court could declare that the road was a county road in the past, but that the county now wishes to abandon the road. This would still presumably leave Mr. Biermann with a private easement in his favor, which he could then use at will, but would take us out of the controversy with respect to the gate. The court could also declare that the road was never a county road, but I believe that evidence exists to make this decision subject to being overturned. Additionally, either of these decisions would probably not resolve any of the issues for the parties, because the road would not necessarily lose its public character just because the county has chosen to abandon it. Please advise if you would like any additional information concerning any one of these alternatives. PETITION FOR COMMUNITY ROAD ANDRAS BIERMANN, ET AL. To the Honorable Commissioners' Court Kerr County Texas: I, Andras Biermann, joined by the other petitioners herein, all resident citizens and freeholders of Commissioner's District No. 3, Kerr County, Texas, respectfully represent and show to the Court that the said Andras Biermann lives and has his home and family on a small farm in the Eastern portion of Kerr County, in said Commissioner's Precinct No. 3 about 3 miles West from the town of Comfort. That the said town of Comfort is the post office, mailing point, express shipping and R.R. Station for the said Andras Biermann. That the said Andras Biermann's home and farm is completely enclosed and surrounded by the following named people's farms and enclosures which prevent him any outlet whatever: on the North by Martin Spenrath, on the West by Dr. Harwell: on the South by Chas. Biermann and on the South East and East by Chas. Apelt and Otto Route: They show that the nearest and most practical and the only practical route for the said Andras Biermann to the said said town of Comfort is almost on East line from said Biermann's residence to the Guadalupe Road. That said route would take said Biermann after leaving his own premises over and across the inclosed land of Chas. Biermann. Then the enclosed land of Chas Apelt and then for about 100 yards across the enclosed land of Otto Route. They say and show that the said andrus Biermann has the free written consent from the said Chas. Biermann and Chas. Apelt to the free and unhindered passway over their said enclosures over the said route hereinbefore indicated and they hereby petition this court to condemn and open as a neighborhood road the remainder of said route over and across the said Otto Route's said land to the Guadalupe Road to the end that the said Andrus Biermann have a way and outlet to the said town of Comfort for the purposes hereinbefore named: "Signed" Chas. Biermann and eleven others On this 11th day of November 1909, came on to be heard the petition of Chas. Biermann and eleven others, as set out above for the Honorable Commissioners' Court to open up a community road, as therein set out, and after considering said petition and the counter petition of Wm Spenrath and sixteen others filed in the office of the County Clerk. Said counter petition having been considered in connection with the above petition herein, said counter petition being hereby rejected. And the parties interest in said petition, viz., Andrus Biermann, Chas. Biermann, Gus Biermann, Chas. Apelt and Otto Route having agreed upon the establishment of said community road in terms as follows: -- The said Chas. Biermann, Gus Biermann and Chas. Apelt shall forthwith file their written consent with the Clerk of this Court for said road to be established and laid out as set forth in said petition across and upon their said lands without recompense or damages to either: and it is further agreed in open court by and between Andras Biermann and Otto Route that said Biermann shall pay to said Route Thirty Dollars as damages for the establishment of said road upon and across said Route's land as specified in said petition. Therefore said above petition be granted and said road be lain out and established as therein set out without cost or expense to Rerr County, and upon the conditions set out above as near may be. The particular route to be determined by H. Wildenfield, Comm. of Prec. No. 3 who is hereby authorized in connection with said parties to lay out said road, and it is further agreed in open court, that said Route shall at his own expense put suitable gates through his fence for same. ORD~ N0. 21991 ~, ~ COUN`~ ADO S~Q 1~~ ~ SP~'ZH ~IFT.ID FOg ytYl'r May 3, 1994 Vol '1 ~ page 409