
    GULF, C. & S. F. RY. CO. v. BRYANT.
    (No. 7595.)
    (Court of Civil Appeals of Texas. Galveston.
    May 29, 1918.
    Rehearing Denied June 20, 1918.)
    Highways <⅞=>7(1) — Railroad Rights op Way — Prescription.
    Where roadway on railroad right of way outside the poles carrying telegraph wires was used generally by the public for hauling and travel for more than 20 years to the knowledge of the railroad, and was worked by the citizens, there was. a public road by prescription.
    Appeal from District Court, Burleson County ; R. J. Alexander, Judge.
    Action by I. B. Bryant against thd Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and Jno'. G. Greggs, all of Galveston, and Bowers & Bowers, of Caldwell, for appellant. W. M. Hilliard and A. B. Gerland, botín of Caldwell, for appellee.
   PLEASANTS, C. J.

This is a suit for an injunction and for damages, brought by ap-pellee against appellant. The petition alleges:

That plaintiff owns and resides upon a tract of one acre of land situated in a suburb of the town of Caldwell in Burleson county known as West Caldwell. That plaintiff’s said home adjoins the right of way of defendant company for a distance of about 100 yards, plaintiff’s premises being west of said right of way and fronting thereon., That some distance south of plaintiff’s premises a public road known as the Caldwell and Brenham road crosses the defendant’s railroad, and that another public road known as the Caldwell and Deanville road crosses defendant’s railroad about one-third of a mile north of plaintiff’s home. That for more than 30 years prior to the institution of this suit there had been a road along defendant’s right of way in front of plaintiff’s premises, connecting the two public roads before mentioned. That said road along the right of way had been used by the public generally, continuously, and openly as a road for travel and traffic in buggies, wagons, and vehicles of all kinds. “That during all of said time the road was always kept in good condition for travel. That said use. of said road as mentioned was during said time continuously of a nature and character reasonably calculated to put defendant on notice that said road was being so used adversely to the rights of the defendant. That defendant had notice of the fact that said road was, during all of said time mentioned, so used by the plaintiff particularly and the public generally, adversely to its rights in said land over which said road was and run. That at the time plaintiff purchased his said home, because of defendant’s conduct and attitude toward the use of said road by the public in the manner above set out, he.had reason to believe, and did believe, that the defendant regarded that the public had acquired an easement in said road, and that said road had become a public road by prescription, and that the defendant would not close said road.” “That on or about the 1st of November, 1915, defendant by force unlawfully entered plaintiff’s home, and ' removed and tore down his northeast boundary line fence, same being the division fence between the plaintiff’s said land and home and the defendant’s right of way, and a fence that plaintiff had placed there in fencing his said home over 10 years prior to said date, November 1, 1915, and destroyed his said fence. That the defendant built a cattle guard just north of where the Caldwell and Brenham road crosses defendant’s said right of way and railroad track, and built a strong four-wire fence from said cattle gap to both fences inclosing its right of way; built said fence from said cattle gap to its west boundary line; thence up its right of way following its western boundary line to plaintiff’s east corner; thence continuing following plaintiff’s east boundary line, same being defendant’s west boundary line, the whole distance between plaintiff’s land and defendant’s right of way; thence continuing up defendant’s right of way following its west boundary line to the point where the Houston & Texas Central Railroad track crosses under the defendant’s railroad track. That said road leading by the home of plaintiff is thereby fenced in and stopped up at both ends, and that said fence completely incloses plaintiff with a strong four-wire fence, without any gate or other means of entering or leaving his said home. That by the defendant so fencing in- said road and plaintiff’s said home, the plaintiff’s outlet of ingress and egress to and from his said home was completely destroyed.”

Plaintiff further alleges that by the wrongful act of defendant in removing plaintiff’s fence and inclosing said public road and thus depriving plaintiff of a way of ingress and egress to and, from his home, plaintiff has suffered damage in the sum of $1,600. The prayer of the petition is for a mandatory injunction,"requiring the defendant to remove the fences built by it across said road and to open and restore said road as a public highway for the use of plaintiff and the public generally, and for recovery of the damages claimed in the petition. The defendant answered by general demurrer and general denial. The trial in the court below without a jury resulted in a judgment in favor of plaintiff, granting a mandatory injunction, requiring defendant to leave open a road 20 feet in width along defendant’s right of way, connecting the two public roads mentioned in the petition, and awarding plaintiff damages in the sum of $105.

The following facts were found by the trial court: y

“I find defendant’s right of way to be-100 feet wide, extending 50 feet on either side from center of track or roadbed; I find that for more than 20 years that a road was used by the public generally from the Brenham and Caldwell road to Deanville road near oilmill or cotton platform; that on the west of said road the boundary was defined by a fence on west line of said defendant’s right of way, and that the railroad .bed, beginning at about 2 feet at or near crossing at Caldwell and Brenham road, and increasing in height until same was 5 to 6 feet in front of plaintiff’s premises; that this roadbed was about 30 or 35 feet from the fence, and that there were telegraph poles about 100 feet apart 25 feet from the center of track; that this road was confined between the roadbed of defendant and such fence; that the road was at or in close proximity to the west line of defendant’s right of way, and situated thereon, was 20 feet wide, ancl ran with line of said right of way; that sometimes when muddy that there would be travel between the telegraph poles and roadbed, but that suc-h was sporadic. I find that this road was used daily, a great number of wagons and other vehicles passing over the same, up to 1912, and has been so used by the public generally for more than 20 years and by the plaintiff for between 9 and 10 years, and was a public road by prescription, and same was used in hauling cotton, brick, wood, lumber, and other commodities; that it was traveled and used by the plaintiff in going to and from town to depot, lumber yards, and other points in town, also in going to his school and church; that for 10 years it was the best road, and a large amount of travel from the Brenham and Caldwell road traveled this road. I find that this road was worked at times and kept in condition by the citizens, but there is no evidence that it was ever worked or claimed by the city of Caldwell or by the commissioners’ court prior to incorporation of city of Caldwell.”

These findings are all amply supported by the evidence. We think these facts show more than a mere permissive use of appellant’s uninelosed right of way. The long-continued and uninterrupted use by the public as a roadway of that portion of appellant’s right of way lying between the fences on the west line of the right of way and the row of telegraph poles along the west side of the railroad track shows an exclusive appropriation of the land for use as a public road of that portion of the right of way, and appellant’s long acquiescence in such exclusive use by the public has matured the public’s right in such road by prescription.

The undisputed evidence shows that while this road was never declared a public road by the county or town authorities, nor kept in condition or worked by any public authority, it was worked and kept in condition by the citizens who used it, and that for more than 20 years it has been a much-used, public thoroughfare. It seems to us that if this evidence does not show a sufficiently definite use of a roadway by the public to establish the right in the public by prescription, to such roadway, no such prescriptive right could ever be established. Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53; Railway Co. v. Baudat, 21 Tex. Civ. App. 230, 51 S. W. 541.

Whatever may be the rule in other jurisdictions, the B-audat Case above cited holds that the right to a roadway along the right of way of a railway company can bo acquired by the public by prescription. We think this ruling is sustained by the holding of our courts that title to the unoccupied portions of a railroad right of way may be acquired by exclusive adverse possession under our statutes of limitation.

The conclusions above expressed require the affirmance of the judgment of the court below, and render a detailed discussion of the several assignments of error presented in appellant’s brief unnecessary.

Affirmed. 
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