COUNTY ROADS, PUBLIC ROADS, PRIVATE ROADS AND EASEMENTS

COUNTY ROADS VERSUS PUBLIC ROADS

When is a County Road not a County Road?
When it is a Public Road that is not maintained by the County.

Confusion exists generally concerning the terms public road and county road. Most people assume they are the same. They are not. All county roads are public roads, but not all public roads are county roads.

A public road is a road that has been dedicated to the public, either by express action by the owner of the land over which the road runs, or implied action by the owner –the owner took actions which, under the law, amount to an implied dedication. In most instances, the plat of the subdivision in which the road is located will contain a written statement expressly dedicating the road to the public. A public road may also be established through long and continuous use by the public. A public road that is accepted by the county for maintenance is a county road. Acceptance may be either formal or informal.

Approval of a subdivision plat for recording by the Commissioners Court does not amount to acceptance of the dedicated roads in the subdivision by the county. Action by the Commissioners Court to accept the improvements in a subdivision and release the letter of credit, bond or cash deposit put up by the owner or developer of the subdivision is formal acceptance of the dedicated roads in the subdivision so that they become county roads.

Roads dedicated to the public but not accepted by the Commissioners Court are public roads but not county roads.

An individual County Commissioner has no authority to accept a public road so that it becomes a County road. However, if an individual County Commissioner, or even a county employee, takes some action –such as assuming responsibility for maintaining a public road –such action could be construed as acceptance of the road so that it becomes a county road.

In summary, if you are in doubt as to whether a road is a county road or a public road, find out how the road is maintained. If it is maintained by the county, it is a county road. If it is not maintained at all or maintained by private entities, it is a public road.

What about Private Roads?
Generally, private roads are roads located in private subdivisions or on private property which have not been dedicated for public use or to which the public has not established a prescriptive easement. Private roads are not maintained by the county. In a subdivision, the roads are usually maintained by the developer or by a property owners association. Usually, some type of maintenance fee is collected from the persons who use the private road by the entity responsible for maintaining the road to cover the cost of maintenance.

What are Easements?
An easement is simply some right of use on real property. It may be an easement for utilities such as electric power lines, water or sewer pipes, telephone or television cables, etc. The owner of the land usually has fee simple title to the land where the easement exists, but has limited right to use the property since the landowner s use cannot interfere with the use of the land by the person or entity that holds the easement. An easement is also referred to as a right-of-way.

Easements may be specifically described by a survey and metes and bounds or by general reference. Easements, like public roads, may be expressly granted, either in a deed, plat or other written instrument, or obtained through long and continuous use. The most common easement is an easement for ingress and egress –the easement that a property owner has to get to their property by traveling over the property of another. In most instances, the holder of the easement has only the right to travel over the easement; they do not have the right to improve the easement, relocate it or expand it, unless such rights are specifically granted by the owner of the property. Many easements resulted from the division of property originally belonging to one family. When the original owners died and the property was passed on to their heirs, the property was partitioned. Owners of tracts that did not front on a public or county road were granted easements to travel across the tracts with frontage on the roadway. Subsequently, some of the heirs sold their tracts to third parties. In some instances, the third parties denied the right of the interior landowners to continue to use the easement. Unless such cases are amicably resolved, the respective rights of the parties must be determined by a court of law.

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DISTRICT JUDGE FINDS KERR COUNTY DEVELOPER VIOLATED COURT ORDER

At a hearing in the 216th District Court today, Judge Michael Peden found that Gregory Blume, the developer of a subdivision referred to as Boerne Falls Ranch, violated the temporary injunction issued by the Judge earlier this year. According to evidence presented to the court by witnesses who live in the Champee Springs subdivision, Blume continued to use Kendall County roads to develop the subdivision located across the county line in Kerr County after the court granted the injunction sought by Kendall County. Under oath, Blume admitted that at least four 18-wheel trucks used Ranger Creek and Turkey Knob roads in Kendall County to deliver construction materials to the Kerr County development, but contended that the materials were to be used to construct a patio around a sales office for the subdivision. Evidence was also presented by the Kendall County witnesses of other heavy truck traffic entering and leaving the subdivision in violation of the order.

The Judge has the authority to impose a fine of up to $500 for each incidence of contempt, sentence Blume to be confined in the County jail for up to six months, or impose both the fine and the incarceration. Judge Peden set a sentencing hearing for September 7th, cautioning Blume, that if there was any evidence of a violation of the order before the sentencing hearing, “I will put you in jail.”

Blume was represented in the hearing by attorneys Paul M. Terrill, III of the Austin law firm of Hazen & Terrill and Richard C. Mosty of Kerrville.

Kendall County was represented by Michael R. Hedges and Fred R. Jones of the law firm of Goode Casseb Jones Riklin Choate & Watson and County Attorney Don Allee.

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Developer s Law Suit Against Kendall County Dropped

Last spring, Kendall County was approached by a developer that wanted to put an intense development in Kendall County in violation of the County s development rules and regulations. Beginning with the initial contact with Kendall County, the developer and his representatives, including a local engineer and an attorney out of Dallas, told County representatives that the County regulations were invalid and that the County had no authority to tell the developer what he could and could not do. Kendall County officials were just as resolute in responding to the developer that the County did have the authority under state laws to set road frontage requirements, building set back lines, minimum lot sizes and density of development.

At a meeting of the Kendall County Commissioners Court on April 10, 2006, the matter came to a head. The developer, represented by attorney William Palmer, an attorney from Dallas (not to be confused with County Court At Law Judge Palmer), told the Court and those in attendance, that the proposed subdivision, then known as Circle K Ranch

with a planned 1,184 homes on 400 acres, would be developed whether the County approved it or not, and if the County did not approve it, suit would be filed. At that meeting, County Attorney Don Allee defended the County s development rules, contradicting Palmer and stating that the County had the same authority to regulate development in the unincorporated areas of the County as the cities of Boerne and San Antonio had to regulates development in their ETJ.

The Commissioners Court, denied approval of the proposed subdivision, and Palmer, making good on his threat, filed suit in the 216th District Court.

On October 31, 2006, the suit, styled Legacy Land and Cattle, L.L.C. v. Kendall County Commissioners Courtwas dismissed.

Commenting on the dismissal, County Attorney Don Allee stated that he had directed the attorney representing the County in the suit, George Hyde, to proceed to obtain a court hearing on the County s motion to dismiss the suit and the attorney for the developer apparently decided to file a motion to dismiss the case rather than having it heard by the Court. It is a victory for Kendall County that the suit has been dismissed, Allee stated. At least one developer has apparently conceded that the County does have the authority to regulate lot size and density of development. We will continue to enforce our development rules and regulations in order to protect the health, safety and welfare of the people of Kendall County and to provide for the orderly development of the County.

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District Court Grants Injunction against Kerr County Developer

A District Court Judge has granted an injunction against BTEX Ranch, LP, a developer proposing to develop property in Kerr County utilizing access from Kendall County roads. The developer, principally acting through Gregory Blume from Houston, has contended for several months that he could develop property located in Kerr County but adjacent to the Kendall County line using access from Ranger Creek Road and Turkey Knob Road, two Kendall County roads, without complying with Kendall County Development Rules and Regulations.

Although the developer sought approval of the proposed development by the Kerr County Commissioners Court, approval was never sought from Kendall County. The only documents submitted to Kendall County was a copy of a plat of the never developed Privilege Creek Ranches subdivision conditionally approved by Kerr County in January 2001 and a document prepared by Matkin-Hoover Engineering, Inc. with a proposed upgradeof Turkey Knob Road from it s terminus near the Kendall County line extending into Kerr County. The documents were delivered to Kendall County officers on November 9, 2006 with a letter from the attorney for BTEX, Paul M. Terrill, III of the Austin law firm of Hazen & Terrill, demanding prompt approval of the engineering plans and specifications to upgrade the western end of Turkey Knob Road…... or …….

my clients will file suit to enforce their rights. The letter only gave Kendall County until November 16, 2006 to respond. The County s response was a letter from County Attorney Don Allee advising Terrill that the developer would have to comply with County rules and orders to seek approval for any activity in Kendall County and, on November 16, 2006, the filing of the suit in the 216th District Court of Kendall County.

The case was assigned to Judge Michael Peden of the 285th District Court of Bexar County. Following almost two days of hearing evidence and legal argument, Judge Peden granted the request of the County that the developer cease violating the Kendall County Development Rules and Regulations and cease using a tract of land located at the end of Turkey Knob Road in violation of the Rules and Regulations.

An Order must be prepared and submitted to Judge Peden for approval, but Kendall County attorney Don Allee said that the granting of the injunction means that the developer must comply with Kendall County rules. That is what we have been telling Mr. Blume, his attorneys and engineers since the beginning. As early as June of last year, I sent Bob Eason of my office to the meeting of the Commissioners Court of Kerr County to inform the members of that court, Mr. Blume and his engineers that he could not come into Kendall County and use Kendall County roads without complying with our rules, regulations and orders,Allee stated. Instead, the developer and his attorneys chose to try to intimidate the County into summary approval of their proposed extension of Turkey Knob Road into Kerr County, leaving us no recourse except to take the matter to Court. I m pleased with the presentation made by our attorneys, Michael Hedges and Fred Jones, and the Court s ruling. This is another victory against a developer from out of the area who wants to develop property in the Hill Country without compliance with local rules,Allee said.

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