According to my County Engineer, approximately 90% of Comal County's roads (New Braunfels/Schlitterbahn area for those of you in those far away places) have come into the county's control through county maintenance and use by the public without any private landowners contesting such. By this, I mean that a search through the commissioners court minutes over the past 100 years shows that very little formal action was taken to accept dedications of these roads. Over the years, these roads evolved through public use and as such the county took on more and more responsibility over them. The County Engineer insists that a county road includes more than just the pavement; that it also includes any area off of the pavement on either side to maintain drainage and keep obstructions from interfering with traffic, although no records indicate a dedication of such. In most cases, landowners do not contest the county maintaining a reasonable area off of the pavement. However, one such landowner, who owns the land on both sides of one such very old county road, began depositing debris in the drainage areas on one side and erected fence posts in the drainage areas on the other side in an attempt to protest/contest county presence. Does the county road extend past the pavement in this fact scenario? The county can not meet the elements of an implied dedication. This leaves open the possibility for adverse/prescriptive rights that the county may have; however, this would entail acts by the county adverse and exclusive to that of the landowner. See, when I say the county "maintains" the road, I mean to say that the county does not necessarily overtly commit acts of maintenance; they just insure "preservation," as eloquently articulated by County Engineer. The landowner mows the area. If we negotiate to purchase/condemn this area, then we might have opened the door to a dangerous precedent for all the rest of these roads consisting of hundreds of miles. Ching, Ching$$$$$$$$$$$.

I'm not the expert...the expert is Lisa Peterson, CA in Nolan County. Call her and get her to send you her last two papers on county roads which she presented at latest civil law seminars.

Is your county working on a new county road map under the "grace period" given counties by the Legislature to rectify the kind of problems you are faced with? If the county prepares a new county road map and it is approved by the comm court, then all those problems like the one you are addressing will "go away."

Re dumping garbage, that can be a criminal offense under Health and Safety Code Section 361.

Short answer is that it can sometimes depend on each set of facts for each road, but as a general rule, your county engineer is correct.

Usually, the ROW easement runs from the fence line on either side of the road, where you are lucky enough to have fences along the road. Even without the fences, the easement would include the drainage ditches and whatever is necessary for lateral support of the road. Where there has been no dedication via plats or deeds accepted as such by the County, the easement is prescriptive (as in necessary) and that would include the area that would be necessary to accomodate the needs of the traveling public. As with everything, there are numerous and sometimes complicated exceptions such as situations where a legitimate argument can be made this ROW easement would extend beyond the fence lines, and the County might be forced to require the owner to move his fence lines. There is also a recent statute that provides a mapping system that you also need to review, and its explanation goes far beyond the confines of any answer that would reasonably fit within this website.

Also, interfering with existing drainage is grounds for an injuction. Finally, except possibly under an old Transportation Code statute, as a general rule, a private person can not acquire government interests, including a road, through adverse possession. Finally, as suggested above, call Lisa Peterson or an Joe Grubbs in Ellis County as he had a lawsuit a couple of years ago involving fences and their location, etc, and might could give you some good pleadings to use.

[This message was edited by LV on 12-01-04 at .]

Our county is in the middle of a lawsuit over this issue. Property owner wants to put a fence on her property line, which is along the edge and partially in the traveled portion of the roadway. Road was never dedicated but has been a public road for 100 years. Look at Allen v. Keeling, 613 SW2d 253 for proposition that roadway extends beyond the "beaten path" to include sufficient area for drainage, maintenance, etc.

We had a similar situation a couple of years ago. Our position was similar to what has been stated above: our roads are constructed with a crown in the middle to shed water. This design requires a drainage area on either side of the road. We also refer back to the County Road Regulations, which define the construction standards of the road to include the necessary drainage areas.

OK - since I am at least 30 miles from anywhere.....!

I agree with what is being said. First, no one can claim adversely to the government. THerefore, unless you have gotten rid of the road, you still have the road. (The nice thing about the mapping statute is that it gives you a chance to clean up a bunch of this).

The intent behind the statutes, backed up by case law and opinions, seems to be that the government is entitled to enough ROW to maintain the road; no one can maintain it with access just to the paved portion. The public is going to have an easement along the roadway.

Dumping is a crime, as is destroying county property (ie, a road). A stiff letter to the offending landowner generally creates muttering but gets rid of the overt actions!

Now for the $64 question, How do you convince the Comm. Ct. to follow through with the mapping process to end these isues once and for all?
I brought the process to the court several months ago after another road dispute and could not get the votes to get it done....Now several disputes later, I have basically told them I am considering refering them to a private legal firm to assist with these perpetual questions since they won't help themselves by adopting a county road map. Money talks, and at least, I think,they are going to consider it now. The lesson here is the statement "The good Lord helps those who help themselves" also applies to county roads.