Locals Fishing Hole, Gate off my property?

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Latest post Thu, May 14 2015 7:33 AM by Drew. 22 replies.
  • Fri, May 1 2015 6:44 PM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    I have no doubt a country "could" acquire and hold a prescriptive easement ..IF it met all the requisite conditions, same as other folks ..I. M not an attorney nor in TX but Judon Fambrough at Texas A& M is both and has a paper on topic on line .

    At least as he describes the requisite conditions ...grading the roadway from time to time is not even close to meeting the requirements in TX law.   But you forgot to mention that in first post and OT begins to muddy the waters.

    But you'd be smart to get some seasoned legal TX input.

    BTW ..IF the prior owner granted permission  for use or grading  it may be fatal to County view,   Ditto if the prior owner made personal use of the graded roadway, it may be fatal to county view, and last but not least, the law may bar or frown up creation of prescriptive  easement to purely recreational or unimproved lands 

    BTW just what kind of warranty as to title did the prior owner give you ?  If the seller is on the hook as to title, it sure might help if seller has clear memory/records as to grant of permission  and his use of roadway as well.

    I live down a drive which is not where the roadway is supposed to be and there are all kinds of loose ends as to permissions dating from 1930s and missing paperwork ...and NJ has some similar issues as to not recognizing an easement of necessity to unimproved lands ...OUCH...none of this matters..what does matter is the TX law and facts ..and aside from bully power...the county is way short on facts at least as advanced by commissioner 

    I could not find a working link to that TX  AG  opinion..no clue what it reports to say.   But I did find a an AG opinion on country expenditures for private roads 



  • Fri, May 1 2015 7:26 PM In reply to

    • DPH
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    Re: Locals Fishing Hole, Gate off my property?

    dalepa:
    "he says" the county has a prescriptive easement

    Hopefully you will not blindly accept that person's statement as legal fact.  It doesn't appear as if you have consulted with a local attorney yet, but I would strongly suggest that you do so in short order.  County commissioners have lots of power and could likely make your life a bit difficult somewhere down the line, but bully powers by elected officials only work for so long.  Use the Find A Lawyer to the right of this page if you don't know any lawyers to ask for a referral.  Ask your friends, neighbors, church members, etc.  You probably want a Real Estate attorney, if possible.

    Just out of curiousity, what if anything are you planning on doing with this property?  Are you planning on building a home on the point at the end of the "road"?  A bait camp?  I have to wonder how long the county would maintain this road, such as it is, if there was a private home or business at the end.

     

     

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain

     

  • Fri, May 1 2015 7:46 PM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    Actually I Got to that AG opinion by a different route and did not know it was same ..try the TX a OAG site and look in 2002 for # 503 ...it provides some interesting insight and citations ....

    for starters what is population of your county. More or less than 50,000 ? 

     



  • Sat, May 2 2015 2:49 AM In reply to

    • dalepa
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    Re: Locals Fishing Hole, Gate off my property?

     

     

     

    Drew:

    for starters what is population of your county. More or less than 50,000 ? 

    The population Of the county is about 22k

     



  • Sat, May 2 2015 5:25 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    Read the OAG opinion...there are much more demanding rules,for the county if population is below 50,000 to meet the criteria of a prescriptive easement for a road 

    There is a TX Supreme Court case that puts Ice water of gaining prescriptive easements to access recreation or unimproved areas .

    TX still favors the landowner ...To establish a prescriptive easement one must pass say 5 tests ..4'doest get it done . Note the role of prior permission or prior use by prior owner

    Even if there was a road easement  does not entitle people to,get off the road and party  at fishing hole.....

    Caution..there is an act in TX as to open beach access..as to navigable waterways etc...I don't  know if or how,it might apply.

    Take a very serious look at the TX trespassing law and consider solid signage at the road entrance PLUS all along road and at fishing hole..perhaps,even cameras .   A criminal trespassing conviction is no laughing matter in TX 

    Unless you plan of getting bullied into submission ..you best get some solid help from a TX attorney skilled at land use issues and not beholden to county or other government clients.

     

    Fights are expensive for governments too...locally Ive seen units of government pay very high prices for very small strips of land ..part of avoided costs ...but requires some skills....



  • Wed, May 13 2015 7:09 PM In reply to

    • dalepa
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    Re: Locals Fishing Hole, Gate off my property?

    Can you point me to the case law that talks about recreation or pleasure purposes.  I believe that this would apply in my case since the only reason for the dirt road access is for people to fish from the point.

     

    I also found Transportation Code Chapter 281 and more information on the subject.

     

    In 1981, Chapter 281 of the Transportation Code took away the ability of counties of 50,000 people or less to acquire a road by prescriptive easement. As of 1981, these counties can only acquire an interest in a road by:

    1.      purchase;

    2.      condemnation;

    3.      dedication of a landowner; or 

    4.      final judgment of adverse possession under the law. Chapter 281 explicitly states that, in this case, adverse possession is not established by public use of a private road with permission of the landowner, or public maintenance of a private road in which the public interest is not recorded.

    http://countyprogress.zacpubs.com/county-road-clarification/

  • Thu, May 14 2015 7:33 AM In reply to

    • Drew
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    Re: Locals Fishing Hole, Gate off my property?

    A lot of the TX stuff is on line under easement topic..

    I dont think an issue of crossing your lands to get to recreation lands is the strongest point IF you own the recreation point as well!

    Once they get there are they not also trespassing ?

    Which of the 4 points does county meet, if any?



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