Concurring=20
Opinion by Justice Moseley
When Red River =
County began=20
making improvements to a road crossing Stanley Graff's property, =
Graff=20
brought suit against Vernon Berry; M. D. Whittle, individually and =
in his=20
official capacity as county commissioner; Rufus Ward, Jr., in his =
official=20
capacity as county commissioner; Elmer Caton, in his official =
capacity as=20
county commissioner; and Josef Hausler, in his official capacity =
as county=20
commissioner. Graff argues the =
trial court=20
erred by granting summary judgment and erred in awarding =
attorney's fees=20
to the commissioners. We hold: 1) the trial court erred in taking =
judicial=20
notice of the court records which had not been attached to the =
summary=20
judgment motion and had been destroyed; 2) Graff has failed to =
show our=20
conclusion in Graff II that the trial court's judgment in =
Graff I contained an adequate description was clearly =
erroneous;=20
and 3) there are genuine issues of material fact. Factual=20
Background In December 1995, =
a jury=20
found a road crossing Graff's property to be a public road and =
found that=20
Whittle and Berry had acquired easements by prescription and =
necessity.=20
This Court, while noting a private easement is inconsistent with a =
finding=20
the road was public, Despite the =
resolution of=20
the lawsuit, there continued to be disputes between Graff and his=20
neighbors over the road. In 1998, Red River County hired a =
surveyor, Royce=20
Hammett, to provide a metes and bounds description of the road. =
Hammett=20
was the same surveyor who had prepared the 1981 plat relied on in=20
Graff I. Hammett's plat was accepted by the county in =
1998. In his amended =
petition,=20
Graff sought a declaratory judgment declaring, among other things, =
that=20
Graff I was "vague and unenforceable," that the road the=20
commissioners had constructed was "not, in whole or in part, =
within the=20
metes and bounds of the public road," that the tax rolls be =
"adjusted to=20
reflect the change in ownership of the road in question," and that =
Red=20
River County is obligated to replace the gates it removed. In =
addition,=20
Graff brought a trespass to try title and an inverse condemnation =
claim.=20
In their =
traditional motions=20
for summary judgment, the commissioners claimed they were entitled =
to=20
judgment as a matter of law. The commissioners argued the road was =
the=20
same road that was declared a public road in Graff I. The =
commissioners argued Graff II became "the rule of the =
case and is=20
res judicata on any question regarding the sufficiency of the=20
description." In support of their motions, the commissioners =
presented=20
summary judgment affidavits from Hammett, Whittle, and James R. =
Rogers.=20
The commissioners also requested the trial court take judicial =
notice of=20
the entire file of "Cause No. 134-CV-5-93 including all pleadings, =
the=20
judgment, all testimony and exhibits." In his response, =
Graff again=20
claimed the judgment in Graff I was unenforceable due to =
an=20
inadequate description. Graff argued the 1901 commissioners court =
minutes=20
merely established a third-class road. Graff objected to the=20
commissioners' summary judgment evidence as hearsay and legal =
conclusions.=20
Graff also objected to the court taking judicial notice of cause=20
number 134-CV-5-93 and argued the trial court could not take =
judicial=20
notice as a procedural alternative for summary judgment evidence =
and could=20
not take judicial notice of the file because the file has been =
destroyed.=20
Graff introduced affidavits from the Red River County District =
Clerk and=20
the clerk of this Court that the file had been destroyed. Graff =
filed a=20
summary judgment affidavit from Ruben Gregg Saxon, a licensed =
surveyor.=20
Graff also filed excerpts from Hammett's deposition and excerpts =
from the=20
hearing on the temporary injunction as summary judgment evidence.=20
At the hearing on =
the=20
summary judgment motions, the trial court took judicial notice of =
the=20
"entire file that's on file in this court in cause number =
134-CV-5[-]93."=20
The trial court overruled Graff's objections and granted the=20
commissioners' motions for summary judgment. The trial court =
awarded the=20
commissioners attorney's fees in the amount of $30,860.00, plus an =
additional $15,000.00 if appealed to this Court and an additional=20
$10,000.00 if appealed to the Texas Supreme Court. I. The =
Trial Court=20
Erred In Taking Judicial Notice of Court Records Which Were Not =
Attached=20
to the Summary Judgment Motion and Had Been=20
Destroyed The trial court =
took=20
judicial notice of the "entire file that's on file in this court =
in cause=20
number 134-CV-5[-]93." Graff claims the trial court erred because =
the=20
documents being judicially noticed were not attached to the =
summary=20
judgment motion, and the file being judicially noticed no longer =
exists.=20
Under the Texas =
Rules of=20
Evidence, judicial notice may be taken at any stage of the =
proceeding.=20
Tex. R. Evid. 201(f). A "judicially noticed fact must be one not =
subject=20
to reasonable dispute in that it is . . . capable of accurate and =
ready=20
determination by resort to sources whose accuracy cannot =
reasonably be=20
questioned." See Tex. R. Evid. 201(b). Under the common =
law, a=20
trial court could take judicial notice of records of its own court =
in a=20
case concerning the same subject matter and between the same or=20
practically the same parties. Gardner v. Martin, 162 Tex. =
156,=20
345 S.W.2d 274 (1961); Musgrave v. Brookhaven Lake Prop. =
Owners=20
Ass'n, 990 S.W.2d 386, 401 (Tex. App.--Texarkana 1999, pet. =
denied).=20
A fact of which judicial notice can be taken is "a matter of =
evidence and=20
knowledge on the part of courts which requires no formal proof."=20
Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521, 523 =
(1961)=20
(quoting Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d =
825,=20
830 (1950)). The Texas Supreme =
Court has=20
held that compliance with Rule 166a requires that certified copies =
of the=20
documents referred to, including court records, be attached to the =
summary=20
judgment motion. Gardner, 345 S.W.2d at 276-77. The =
relevant=20
portion of the current Texas Rules of Civil Procedure is =
essentially=20
identical to the applicable rule interpreted in Gardner.=20
Compare Tex. R. Civ. P. 166a with Tex. R. Civ. =
P. 166-A,=20
241-242 S.W.2d (Tex. Cases) pp. xxxvi-xxxvii (1952, superseded =
1967). The=20
Fort Worth Court of Appeals has recently relied on =
Gardner in=20
concluding certified copies of court records must be attached to =
the=20
summary judgment motion in order for the court records to be =
admissible as=20
evidence in support of a motion for summary judgment. Souder =
v.=20
Cannon, 235 S.W.3d 841, 848 (Tex. App.--Fort Worth 2007, no =
pet.).=20
The commissioners =
cite=20
Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.--Dallas =
2005,=20
no pet.), in support of their proposition that the documents do =
not have=20
to be attached. The Dallas Court of Appeals concluded the =
documents being=20
noticed were not required to be attached. Although the court =
references Gardner, the court does not attempt to =
distinguish=20
Gardner. Gardner and its progeny hold that =
attachment is=20
only necessary if the notice is being taken during summary =
judgment=20
proceedings. Absent summary =
judgment=20
proceedings, there is no requirement that the documents be =
attached.=20
Sierad is distinguishable from the current case because =
it was=20
not a summary judgment. The judgment being appealed from in=20
Sierad was from a bench trial rather than a summary =
judgment=20
proceeding. Id. Because the appeal was from a bench =
trial, the=20
Dallas Court of Appeals applied the general rule, which does not =
require=20
the documents being noticed to be attached. The commissioners =
also rely=20
on Jett v. Sides, 367 S.W.2d 921, 924 (Tex. Civ. =
App.--Waco 1963,=20
no writ). Jett involved a collateral attack on an =
annulment of a=20
marriage. Id. Although the trial court granted a summary=20
judgment, the appellate court treated the motion as a bill of =
review=20
governed by former Rule 329-b rather than former Rule 166-A. =
Id.=20
The Waco Court of Appeals noted Gardner and specifically=20
distinguished the attachment requirement announced in Gardner =
as=20
being restricted to summary judgment motions. Id. We do =
not find=20
Jett to be persuasive authority. The court documents were =
required to be attached to the summary judgment motion. Second, judicial =
notice=20
cannot be taken of documents which are no longer in existence. =
Graff=20
supplied an affidavit from the Red River County District Clerk, =
who=20
affirmed that all records, transcripts, and exhibits in cause =
number=20
134-CV-5-93 had been destroyed and that he was not aware of =
anywhere=20
copies could be obtained. Graff also filed an affidavit from the =
clerk of=20
this Court which affirms that this Court no longer has any records =
from=20
the appeal in that cause number. Judicial notice must be made of =
facts=20
beyond reasonable dispute which are capable of accurate and ready=20
determination by resort to sources whose accuracy cannot =
reasonably be=20
questioned. See Tex. R. Evid. 201(b). If a source no =
longer=20
exists, the facts being noticed cannot be determined by resort to =
that=20
source. II. Our =
Conclusion=20
That There Was An Adequate Description Is Not Clearly=20
Erroneous Disagreeing with =
our opinion=20
in Graff II, Graff again argues that the judgment in =
Graff I=20
is unenforceable. For a legal =
description to=20
be sufficient, the document must contain, or incorporate by =
reference,=20
some other existing writing--a description of the land sufficient =
to=20
identify the land with reasonable certainty. See Morrow v.=20
Shotwell, 477 S.W.2d 538, 539, 15 Tex. Sup. Ct. J. 196 (Tex. =
1972).=20
The language of the judgment implicitly references the pleadings =
by=20
describing the road as the "road in question." Further, a =
description may=20
be rendered definite and certain by reference to the pleadings and =
other=20
parts of the record. 46 Am. Jur. 2d Judgments =A7 105 (1994); 47 =
Tex. Jur.=20
3d Judgments =A7 93 (1998). This Court's opinion in 1997 recited =
that a=20
registered professional surveyor, Royce Hammett, testified that in =
1981 he=20
had surveyed the property and marked the course of the road over =
the=20
property. Graff, 947 S.W.2d at 637. It was clear that the =
1981=20
survey was introduced into evidence at the jury trial establishing =
that=20
the road was a public road. In 1998, Hammett diagramed the road in =
question with a metes and bounds description, a copy of which was=20
introduced into evidence. When considered in connection with the =
pleadings=20
and the record, the Whittle Judgment is sufficient to describe the =
road=20
with reasonable certainty. Graff v. =
Berry,=20
2006 Tex. App. LEXIS 8541, at *9-11. "Under the law of =
the case=20
doctrine, a court of appeals is ordinarily bound by its initial =
decision=20
if there is a subsequent appeal in the same case." Briscoe v. =
Goodmark=20
Corp., 102 S.W.3d 714, 716 (Tex. 2003). The law of the case =
doctrine=20
provides as follows: The "law of the =
case"=20
doctrine is defined as that principle under which questions of law =
decided=20
on appeal to a court of last resort will govern the case =
throughout its=20
subsequent stages. By narrowing the issues in successive stages of =
the=20
litigation, the law of the case doctrine is intended to achieve =
uniformity=20
of decision as well as judicial economy and efficiency. The =
doctrine is=20
based on public policy and is aimed at putting an end to=20
litigation. Id. =
(quoting=20
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) =
(citations=20
omitted)). However, the Texas Supreme Court "has long recognized =
as an=20
exception to the law of the case doctrine that if the appellate =
court's=20
original decision is clearly erroneous, the court is not required =
to=20
adhere to its original rulings." Id. The Texas Supreme =
Court has=20
held that a judgment without a sufficient description of the =
property is=20
void. Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 849 =
(1946);=20
see Arnold v. Crockett Indep. Sch. Dist., 404 S.W.2d 27, =
28 (Tex.=20
1966) ("The general rule is that a judgment for foreclosure of a =
tax lien=20
upon real estate which, though aided by the judgment roll, fails =
to=20
describe a definite tract of land is void."); see also Morrow =
v.=20
Shotwell, 477 S.W.2d 538, 539 (Tex. 1972); Wooten v. =
State,=20
142 Tex. 238, 177 S.W.2d 56, 57-59 (1944); Dixon v. Amoco =
Prod.=20
Co., 150 S.W.3d 191, 194 (Tex. App.--Tyler 2004, no pet.). In =
Greer, the Texas Supreme Court held: [I]n all =
instruments for the=20
conveyance of lands the description must be so definite and =
certain upon=20
the face of the instrument itself, or in some other writing =
referred to,=20
that the land can be identified with reasonable certainty; =
otherwise, the=20
instrument is void . . . . Greer, =
191 S.W.2d=20
at 849. The Texas Supreme Court has recently reaffirmed that a =
judgment=20
without an adequate description is void. AIC Mgmt. v. =
Crews, No.=20
05-0270, 2008 Tex. LEXIS 64 (Tex. Jan. 25, 2008). The issue in this =
case=20
concerns whether the judgment is void or unenforceable due to an=20
insufficient description. In general, descriptions of real =
property in=20
judgments must be "so definite and certain . . . that the land can =
be=20
identified with reasonable certainty"; however, the judgment may =
refer to=20
"some other writing" which can provide the required certainty.=20
Greer, 191 S.W.2d at 849; see Coastal Indus. Water =
Auth. v.=20
Celanese Corp. of Am., 592 S.W.2d 597, 600 (Tex. 1979); =
see also=20
Long Trusts v. Griffin, 222 S.W.3d 412, 416 (Tex. 2006) =
(contract).=20
Ideally, the judgment should contain a metes and bounds =
description of the=20
road. See Las Vegas Pecan & Cattle Co. v. Zavala =
County, 682=20
S.W.2d 254, 257 (Tex. 1984) (instructing trial court to include =
metes and=20
bounds description on remand). However, the law does not require =
the=20
judgment to contain a metes and bounds description. See Tex. =
Builders=20
v. Keller, 928 S.W.2d 479, 481 (Tex. 1996). Texas law merely =
requires=20
the description to be sufficient to identify the property with =
reasonable=20
certainty. The description does not have to be mathematically =
certain.=20
Templeton v. Dreiss, 961 S.W.2d 645, 659 (Tex. App.--San =
Antonio=20
1998, pet. denied). The description employed will be sufficient if =
"a=20
surveyor could go upon the land and mark out the land designated." =
Wooten, 177 S.W.2d at 57; see Wilson v. Fisher, =
144 Tex.=20
53, 188 S.W.2d 150, 152 (1945); Dixon, 150 S.W.3d at 195; =
Gilbreath v. Yarbrough, 472 S.W.2d 185, 189 (Tex. Civ.=20
App.--Tyler 1971, writ ref'd n.r.e.). In addition, the description =
is=20
sufficient if someone familiar with the area can locate the =
property with=20
reasonable certainty. "If enough appears in the description so =
that a=20
person familiar with the area can locate the premises with =
reasonable=20
certainty, it is sufficient to satisfy the Statute of Frauds." =
Vinson=20
v. Brown, 80 S.W.3d 221, 227 (Tex. App.--Austin 2002, no =
pet.);=20
see Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 =
(1955);=20
Cherokee Water Co. v. Freeman, 145 S.W.3d 809, 819 (Tex.=20
App.--Texarkana 2004, pet. denied). As we noted in our =
prior=20
opinion, there is an exception when the judgment may be rendered =
definite=20
and certain by reference to the pleadings and other parts of the =
record.=20
46 Am. Jur. 2d Judgments =A7 84 (LEXIS through 2007); 47 =
Tex. Jur.=20
3d Judgments =A7 94 (2007). Graff argues our reliance on =
the=20
statements in American Jurisprudence and Texas Jurisprudence was=20
misplaced. Texas Jurisprudence provides: For the purpose of =
identification, the record may be considered, and, when the =
description in=20
the judgment aided by the pleadings, findings of fact, and =
conclusions of=20
law, or other record identifies the land, the judgment is =
sufficient,=20
unless the case is one in which a statute precludes reference to =
the=20
petition or record to aid the description. 47 Tex. Jur. 3d=20
Judgments =A7 94 (footnotes omitted). Graff also attempts =
to=20
distinguish the cases relied on by Texas Jurisprudence and =
American=20
Jurisprudence. See 46 Am. Jur. 2d Judgments =A7 =
84; 47=20
Tex. Jur. 3d Judgments =A7 93 (2007); see also In re =
Marriage=20
of Los, 482 N.E.2d 1022, 1027-28 (Ill. App. 1985); Clark =
v.=20
Liem, 262 S.W.2d 764 (Tex. Civ. App.--Beaumont 1953, =
no=20
writ); Pick v. Carroll, 256 S.W.2d 211 (Tex. Civ. =
App.--Waco=20
1953, writ ref'd n.r.e.). We are not convinced these distinctions =
render=20
our prior opinion clearly erroneous. The Texas Supreme =
Court has=20
recently held that a description which references tax tract maps =
may be=20
sufficient. AIC Mgmt., 2008 Tex. LEXIS 64. The tax =
judgment in=20
AIC Management described the property as "TR 12 AB 659 =
T.S.=20
Roberts situated in Harris County." Id. The Texas Supreme =
Court=20
held the tax tract map was not prohibited extrinsic evidence. =
Id.=20
While the judgment in this case does not directly reference the =
1981 plat,=20
it does refer to the road as "the road in question" and references =
the=20
plat through the pleadings. The phrase "the road in question" is a =
reference to the pleadings which explicitly reference the 1981 =
plat. Graff now argues =
that the=20
description in the judgment requires this Court to declare that =
the=20
judgment is void. This judgment, unlike a deed or conveyance, was =
based on=20
a jury's determination of the existence of the road. In support of =
this=20
finding, the jury relied on a 1981 surveyor's plat which marked =
the course=20
of the road. This judgment was appealed, and the 1981 surveyor's =
plat was=20
discussed in this Court's Graff I opinion. Graff has =
provided us=20
with no authority which holds that such a judgment concerning the =
location=20
of a public road is void due to a faulty property description. Further, in this =
case, the=20
1981 plat indicates there is only one road crossing the tracts of =
the land=20
in dispute. In Templeton, the San Antonio Court of =
Appeals held=20
that a description was sufficient when it was clear "there was =
only one=20
road passing through the property." Templeton, 961 S.W.2d =
at 659;=20
see AIC Mgmt., 2008 Tex. LEXIS 64, at *23 ("We =
have held=20
that deeds in which the property is described as simply 'my =
property' are=20
sufficient when extrinsic evidence shows that the party owns only =
one=20
tract of land answering the description."). Last, the facts of =
this case=20
are extremely similar to the facts in Perkins v. McGehee, =
133=20
S.W.3d 287, 291 (Tex. App.--Fort Worth 2004, no pet.). In=20
Perkins, the judgment failed to contain any description =
of the=20
boundary of the properties and the findings of fact described the =
boundary=20
merely as "the fence line established by the evidence in this =
case."=20
Id. The court held "the legal description of the parties' =
adjoining properties, the maps and aerial photo of the existing =
fence, and=20
the court's ruling, provide sufficient evidence to identify the =
disputed=20
property with reasonable certainty so that it may be located upon =
the=20
ground." Id. Similar to Perkins, the maps, =
plats, and=20
the pleadings provide sufficient evidence to identify the disputed =
property with reasonable certainty so that it may be located on =
the=20
ground. Graff's own expert was able to identify the location of =
the road=20
as evidenced by his affidavit that the commissioners had changed =
the=20
location of the road. While Graff is =
correct that=20
secondary authority is not binding on this Court, our task is not =
to=20
reconsider our prior decision, but rather to determine whether our =
prior=20
decision is clearly erroneous. We are not now considering a motion =
for=20
rehearing in Graff II. Graff has failed to provide this =
Court=20
with binding precedent holding that, in an instance such as this =
involving=20
a trial court's finding the existence of road by implied =
dedication,=20
reference to the pleadings and other parts of the record is =
inappropriate.=20
Further, this Court's opinion in Graff I references the =
1981 plat=20
which indicates there was only one road crossing Graff's property =
at the=20
time Graff I was decided. As discussed above, the road in =
dispute=20
can be located with reasonable certainty. Graff has not convinced =
us that=20
our prior opinion was clearly erroneous. III. The =
Trial Court=20
Erred In Granting Summary Judgment Because There Are Genuine =
Issues of=20
Material Fact The commissioners =
filed a=20
traditional motion for summary judgment. To prevail on a =
traditional=20
motion for summary judgment, a movant must establish that there is =
no=20
genuine issue as to any material fact and that the movant is =
entitled to=20
judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of =
Houston=20
v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979). =
Summary=20
judgment for a defendant is proper when the defendant conclusively =
negates=20
at least one element of each of the plaintiff's theories of =
recovery or=20
pleads or conclusively establishes each element of an affirmative =
defense.=20
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 =
(Tex. 1997);=20
see Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.=20
1993). A. The =
Commissioners=20
Failed to Prove the Road Established in 1901 Is the Same=20
Road The commissioners =
argue the=20
road in question was created in 1901 as a first-class road. If the =
road=20
was created as a first-class road, the county is prohibited from=20
decreasing its classification. See Tex. Transp. Code Ann. =
=A7=20
251.007(b) (Vernon 1999). Thus, the road would still be a =
first-class road=20
unless the road had been abandoned. The commissioners =
argue the=20
road was a first-class road with a width of sixty feet based on =
the=20
minutes from a commissioners court meeting held on February 11, =
1901. The=20
minutes from that meeting provide, "It is ordered by the Court =
that the=20
petition be granted and that a public road, of the first class =
Sixty-feet=20
wide be laid out in accordance therewith." On May 13, 1901, the=20
commissioners court ordered, following a jury view of the road, =
that a=20
third-class road be created with an identical description as the =
road=20
ordered to be "laid out" in the February 11 meeting. Once a =
commissioners court=20
has ordered the establishment of a new county road, the new road =
must be=20
laid out by a jury of view. Tex. Transp. Code Ann. =A7 251.054 =
(Vernon=20
1999); cf. Tex. Rev. Civ. Stat. art. 4688, 4689, =
4691=20
(amended 1911), available at=20
http://www.sll.state.tx.us/codes/1895/1895civ20.pdf. A jury of =
view lays=20
out the course of the new road and recommends to the commissioners =
court=20
the appropriate amount of damages to the affected landowners. Tex. =
Transp.=20
Code Ann. =A7 251.054; 43 Tex. Jur. 3d Highways, Etc. =
=A7=A7 29, 41=20
(2002); see Dulaney v. Nolan County, 85 Tex. 225, 20 S.W. =
70, 71=20
(Tex. 1892). A commissioners court order to open the road must be =
based on=20
the report of the jury of view. Hill, 294 S.W. at 871; =
see=20
43 Tex. Jur. 3d Highways, Etc. =A7 34 (2002). As =
such, the=20
road described in the 1901 commissioners court minutes was not =
effective=20
until after the report of the jury of view. Since the jury of view =
laid=20
out a third-class road and its report was accepted by the =
commissioners=20
court, the 1901 commissioners court minutes do not establish the =
road was=20
a first-class road. The fact that a =
road located=20
somewhere in Red River County was created in 1901 would not affect =
our=20
opinion. As we noted in our prior opinion, the evidence is =
insufficient to=20
show the road established in 1901 is the same road as the road at =
issue.=20
In Graff II, we held "it is impossible to determine from =
the=20
record before us whether the road established in the =
commissioners'=20
minutes is the same road referenced in the Whittle Judgment." =
Graff v.=20
Berry, 2006 Tex. App. LEXIS 8541, at *13. In this appeal, the =
state=20
of the record is even worse. The only evidence offered by the=20
commissioners to show the road established in 1901 is the same =
road as the=20
road at issue was Whittle's affidavit and Hammett's affidavit. =
Whittle's=20
affidavit provides, "The road that was being described in the =
Commissioner=20
Court Minutes from 1901 describes a portion of the road that is =
the=20
subject of this litigation." Hammett's affidavit provides, "I =
located the=20
actual old road bed. It was apparent that this was an ancient road =
that=20
had been in use for many years." As noted by Graff, the =
commissioners did=20
not introduce a plat, survey, or other evidence of the 1901 road's =
location. Whittle's conclusory statement and Hammett's testimony =
that the=20
road was "ancient" are clearly insufficient to establish as a =
matter of=20
law that the road created by the 1901 commissioners court is the =
same road=20
at issue in this case. As such, the commissioners court minutes =
from 1901=20
are completely irrelevant to this appeal. B. There =
Are Fact=20
Issues Concerning the Width of the Road In our prior =
opinion, we=20
denied Graff's request for a temporary injunction, at least in =
part,=20
because Graff had the burden of proof. We held "[s]ince Graff bore =
the=20
burden of proof at trial, it was Graff's burden to introduce =
evidence of=20
the appropriate width of the road and show probable right to =
relief on a=20
cognizable cause of action. Graff failed to meet this burden." =
Graff=20
v. Berry, 2006 Tex. App. LEXIS 8541, at *14-15. In this =
appeal,=20
though, the commissioners had the burden to prove the width as a =
matter of=20
law. Essentially, no new evidence was presented to the trial =
court. Not=20
surprisingly, there are fact issues concerning the width of the =
road.=20
Graff argues the =
width of=20
the road should be determined by the actual width of the road at =
the time=20
the jury found it to be a public road. The favored =
approach under=20
Texas law is to confine the width to the amount reasonably =
necessary for=20
public travel. See Allen v. Keeling, 613 S.W.2d 253, =
254-55 (Tex.=20
1981); 46 Am. Jur. 2d Highways, Streets, and Bridges =A7 =
63 (noting=20
some courts confine the width to that which is reasonably =
necessary). The=20
Texas Supreme Court has held "[w]hen a road is established by=20
prescription, the right is not limited to the beaten path used, =
but=20
includes sufficient land, where reasonably available, for drainage =
ditches, repairs, and the convenience of the traveling public."=20
Allen, 613 S.W.2d at 254-55; Robinson Water Co. v. =
Seay,=20
545 S.W.2d 253, 260 (Tex. Civ. App.--Waco 1976, no writ); =
Nonken,=20
221 S.W.2d at 374. Although these cases concern roads established =
by=20
prescription, we believe the concept should apply to roads =
established by=20
implied dedication through long and continuous use by the public =
such as=20
the road at issue in this case. The width of the road at issue =
should be=20
determined by the amount which is reasonably necessary for public =
use of=20
the road at the time the road was determined to be a public=20
road. The next question =
is who=20
determines what is reasonably necessary. The commissioners argue =
that we=20
should defer to the judgment of the commissioners court. In =
support, the=20
commissioners cite Tobin v. Commisioners' Court of Bandera=20
County, 558 S.W.2d 85 (Tex. Civ. App.--San Antonio 1977, no =
writ).=20
Tobin held: It is well settled =
that=20
commissioners' courts, when acting within the sphere of the powers =
conferred upon them, are acting as courts and their judgment[s] =
are=20
entitled to the same consideration as judgments of other =
constitutional=20
courts. 15 Tex.Jur.2d Counties =A7 44 at 272-73 (1960). The =
findings=20
concerning the width of the road are, therefore, findings of fact =
which=20
should be given effect at least where there is no evidence tending =
to show=20
that such findings are incorrect. Id. at =
87.=20
Tobin, though, was decided in a vastly different context. =
The=20
judgment being deferred to in Tobin abandoned part of a =
public=20
road and established a new third-class road along "the new route =
as laid=20
out by Mr. Tobin." Id. The court explicitly stated the=20
commissioners court was acting "under the provisions of Art. 6704, =
Tex.Rev.Civ.Stat.Ann. (1960)." Id. The difference in =
this case=20
is there is no evidence the county was acting under the provisions =
of the=20
Texas Transportation Code. There is a fact =
issue=20
concerning the width of the road at issue. The judgment in =
Graff I=20
did not specify the width of the road. The width of a road=20
established by implied dedication is the amount which is =
reasonably=20
necessary for public use of the road at the time the road is =
determined to=20
be a public road. The commissioners failed to establish as a =
matter of law=20
that a sixty-foot right-of-way was reasonably necessary at the =
time=20
Graff I was decided or that the commissioners court made =
such a=20
determination. C. There =
Are Fact=20
Issues Concerning Whether the Road Is In the Same=20
Location In addition, there =
are fact=20
issues concerning whether the new road is in the same location as =
the road=20
established by Graff I. When a county relocates a road, =
the=20
landowner is entitled to compensation. 43 Tex. Jur. 3d =
Highways,=20
Etc. =A7 102 (2002). Saxon, a licensed surveyor, states in =
his=20
affidavit that the new road constructed by the commissioners "is =
not=20
located where a road is depicted on the 1981 survey by Mr. =
Hammett."=20
Hammett testified, in his deposition filed as summary judgment =
evidence,=20
that the new construction was "pretty close" to the location of =
the prior=20
road. After agreeing there was a gap between the fence line and =
the road=20
in the 1981 plat, Hammett testified the county told him to use the =
fence=20
lines as boundaries for the road in the 1998 plat because "[t]hey =
didn't=20
want to leave a strip between the property line" and the =
road. The commissioners =
argue that=20
minor deviations in the course of the road are not compensable. In =
support=20
of this proposition, the commissioners cited O'Connor v. =
Gragg,=20
161 Tex. 273, 339 S.W.2d 878 (1960). In O'Connor, the =
Texas=20
Supreme Court affirmed a finding of a public dedication of a road =
even=20
though there were "a few places where the present road deviates =
from the=20
old road." Id. at 882. O'Connor is =
clearly=20
distinguishable from the current situation. The deviations in=20
O'Connor were natural deviations caused by the use of the =
public=20
over a period of years. Id. There is a fundamental =
difference=20
between natural deviations created by unknown members of the =
public and a=20
change in the location by explicit order of a governmental entity. =
Further, the issue in O'Connor was whether the road had =
been=20
impliedly dedicated, not whether the county could change the =
course of a=20
public road. This is not an appeal of a finding that the road was=20
dedicated through implied dedication. The issue of whether the =
road is a=20
public road was decided in Graff I. As such, the location =
of the=20
road became fixed at that point in time. Any deviation by order of =
the=20
county after that point will be hostile to the rights of the =
adjacent=20
landowner and compensation can be sought. The commissioners =
failed to=20
prove as a matter of law that the road is in the same location as =
the road=20
found to be a public road in Graff I. There are genuine =
issues of=20
material fact concerning whether the new construction is in the =
same=20
location as the road found to be a public road. While we are =
skeptical=20
that Graff suffered significant damages due to the changed =
location, Graff=20
is entitled to recover compensation if he did incur any damages.=20
(20) We hold the trial =
court=20
erred in granting the commissioners' motion for summary judgment. =
The=20
trial court erred in taking judicial notice of the court records =
in cause=20
number 134-CV-5-93. Graff has failed to show that our decision in=20
Graff II, which found the description of the road in =
Graff I=20
was sufficient to identify the road with reasonable =
certainty, was=20
clearly erroneous. Because the commissioners failed to prove as a =
matter=20
of law that a sixty-foot right-of-way was reasonably necessary for =
public=20
travel and failed to prove as a matter of law that the new =
construction is=20
in the same location, there are genuine issues of material fact. =
Because=20
we have sustained Graff's first point of error, the award of =
attorney's=20
fees must be reversed as well. We reverse the trial court's =
judgment,=20
including the award of attorney's fees, and remand this case for =
further=20
proceedings consistent with this opinion. Jack =
Carter Justice CONCURRING=20
OPINION I fully concur =
with the=20
majority that there is insufficient evidence to support the =
summary=20
judgment granted by the trial court in this cause and, therefore, =
the=20
judgment must be reversed and this matter remanded. However, there are =
other=20
issues here which should be taken into account, issues which =
impact more=20
than the question of the validity of the summary judgment which =
was=20
granted below. This case is =
simply the=20
latest chapter in a lengthy controversy concerning a roadway =
crossing=20
property belonging to Graff. Issues involving this road were first =
visited=20
by this Court in 1997 in an appeal of a judgment finding the =
existence of=20
a public road over Graff's property by implied dedication; the =
issue of=20
the precise location of that road by bearing and breadth was =
apparently=20
not raised at that time and this Court affirmed the judgment =
below.=20
Graff v. Whittle, 947 S.W.2d 629 (Tex. App.--Texarkana =
1997, writ=20
denied). In 2006, Graff =
appealed the=20
denial of a temporary injunction wherein he sought to enjoin Red =
River=20
County from entering onto the property to perform upgrades to it. =
At that=20
time, the want of an adequate description as contained in the =
judgment=20
rendered some years before was first raised as an issue. This =
Court, in=20
denying Graff's appeal, stated that For a legal =
description to=20
be sufficient, the document must contain, or incorporate by =
reference,=20
some other existing writing--a description of the land sufficient =
to=20
identify the land with reasonable certainty. See =
Morrow v.=20
Shotwell, 477 S.W.2d 538, 539, 15 Tex. Sup. Ct. J. 196 (Tex. =
1972).=20
The language of the judgment implicitly references the pleadings =
by=20
describing the road as the "road in question." Further, a =
description may=20
be rendered definite and certain by reference to the pleadings and =
other=20
parts of the record. 46 Am. Jur. 2d Judgments =A7 105 (1994); 47 =
Tex. Jur.=20
3d Judgments =A7 93 (1998). This Court's opinion in 1997 recited =
that a=20
registered professional surveyor, Royce Hammett, testified that in =
1981 he=20
had surveyed the property and marked the course of the road over =
the=20
property. Graff, 947 S.W.2d at 637. It was clear that the =
1981=20
survey was introduced into evidence at the jury trial establishing =
that=20
the road was a public road. In 1998, Hammett diagramed the road in =
question with a metes and bounds description, a copy of which was=20
introduced into evidence. When considered in connection with the =
pleadings=20
and the record, the Whittle Judgment is sufficient to describe the =
road=20
with reasonable certainty. Graff v. =
Berry, No.=20
06-06-00065-CV, 2006 Tex. App. LEXIS 8541 (Tex. App.--Texarkana=20
Sept. 11, 2006, no pet.) (mem. op.). In this case, =
Graff has=20
asked us to make a finding that the ruling made by this Court in =
2006 was=20
clearly erroneous and to revisit the issue of the sufficiency of =
the=20
description as contained in the 1997 judgment. However, even if =
the 1997=20
judgment fails to describe which portion of Graff's property is =
subject to=20
an implied dedication of a road, that does not make the 1997 =
judgment a=20
nullity; it simply fails to describe the precise location of the =
road. The=20
essential elements of implied dedication are: (1) the acts of =
the=20
landowner induced the belief that the landowner intended to =
dedicate the=20
road to public use; (2) the landowner was competent to do so; (3) =
the=20
public relied on these acts and will be served by the dedication; =
and (4)=20
there was an offer and acceptance of the dedication. Lindner =
v.=20
Hill, 691 S.W.2d 590, 592 (Tex. 1985). It is the existence of =
those=20
elements, not the 1997 judgment, which created the right of the =
public to=20
the road in controversy. The 1997 judgment simply made the =
requisite=20
findings that such a public roadway existed. However, a written=20
description of the road as it existed on the ground did not exist =
before=20
the 1997 judgment and it did not exist thereafter. As a =
consequence, there=20
is an enforceable judicial decision that in 1997 a roadway existed =
which=20
crossed over Graff's property. That finding simply did not specify =
its=20
location or describe which part of Graff's property was subjected =
to it.=20
The doctrine of =
stare=20
decisis would strongly urge us to be consistent with our previous =
judgment=20
and refuse to take the position that the description is =
inadequate. Stare=20
decisis is the preferred course because it promotes the =
evenhanded,=20
predictable, and consistent development of legal principles, =
fosters=20
reliance on judicial decisions, and contributes to the actual and=20
perceived integrity of the judicial process. Adhering to precedent =
"is=20
usually the wise policy, because in most matters it is more =
important that=20
the applicable rule of law be settled than it be settled right." =
Payne=20
v. Tennessee, 501 U.S. 808, 827 (1991). People have =
the=20
right to be able to know what the laws are. However, stare =
decisis here=20
is a two-edged sword. Although our Court is obligated under that =
principle=20
to give the nod to our previous decisions, it also requires us to =
follow=20
the decisions of prevailing law as set out by higher courts. That =
would=20
include our obligation to apply the law as it pertains to =
descriptions of=20
land. That law is accurately stated in Morrow v. =
Shotwell, 477=20
S.W.2d 538 (Tex. 1972). The rule by which =
to test=20
the sufficiency of the description is so well settled at this =
point in our=20
judicial history, and by such a long series of decisions by this =
court, as=20
almost to compel repetition by rote: To be sufficient, the writing =
must=20
furnish within itself, or by reference to some other existing =
writing, the=20
means or data by which the land to be conveyed may be identified =
with=20
reasonable certainty. See Norris v. Hunt, 51 Tex. 609 =
(1879);=20
Osborne v. Moore, 112 Tex. 361, 247 S.W. 498 (1923); =
Smith v.=20
Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Wilson v.=20
Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Pickett v.=20
Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Hoover v.=20
Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Broaddus v. =
Grout, 152 Tex. 398, 258 S.W.2d 308 (1953); Rowson v.=20
Rowson, 154 Tex. 216, 275 S.W.2d 468 (1955). Id. at=20
539. The need for a =
writing to=20
contain an adequate description in order for it to be effective to =
impress=20
an estate on land applies to judgments as well as to private =
writings.=20
See Wooten v. State, 142 Tex. 238, 177 S.W.2d =
56, 57=20
(1944) (in cases of eminent domain, land must be described with =
reasonable=20
certainty and description must be sufficient enough that "a =
surveyor could=20
go upon the land and mark out the land designated"); Arnold v. =
Crockett Indep. Sch. Dist., 404 S.W.2d 27, 28 (Tex. 1966) (in =
ad=20
valorem tax suit cases, description of foreclosed land must be =
sufficient=20
or judgment is void). After having =
viewed the=20
surveyor's plat upon which the jury relied in the 1997 case (this =
being=20
the same writing upon which this Court relied in the 2006 case), =
it is my=20
opinion that it does not adequately describe the route or width of =
the=20
roadway to sufficiently impress the land with the public's right =
to travel=20
on it. Although the plat shows a dotted line crossing over the =
property to=20
reveal the general whereabouts of the roadway (one which does not =
abut any=20
property line except where it enters and exits Graff's tract of =
land), the=20
plat reveals neither the distance of the entry of the roadway from =
any=20
corner nor does it reference any monument; it specifies neither =
its=20
bearings and distances nor its location with the Graff tract. The =
very=20
fact that Red River County and Graff still reasonably differ =
concerning=20
the width of the road and its location on the ground is some =
evidence in=20
and of itself that there is an inadequate description to guide =
them.=20
Our 2006 finding =
that the=20
description was sufficient was based partly upon the supposition =
that the=20
missing elements to the description could have been supplied with=20
reference to the pleading in the original 1997 case and upon the =
belief=20
that the surveyor's 1998 plat (which bore more information as to =
the=20
bearings and distances of the roadway) reflected precisely the =
same road=20
shown on the 1981 plat introduced into evidence in the trial of =
the 1997=20
case. There are two flaws with those assumptions: (1) In the =
matter of=20
supplying the missing elements of the description by reference to =
the=20
files of the 1997 case, this does not take into account what this =
Court=20
knows now that it did not know then: those records do not exist. =
Even if=20
they did, this would need to assume that something in the =
pleadings did=20
adequately describe the roadway, this being speculative, at best. =
Simply=20
referring to the road as being the one "in controversy" or the =
"road in=20
question" would require parol evidence to determine precisely what =
road=20
was being referenced. Would it not take an additional finding by a =
court=20
to determine precisely what road was in controversy or which road =
was in=20
question? and (2) the 1998 plat plainly shows a different route =
for the=20
roadway than that shown on the 1981 plat. The 1981 plat reflects =
that the=20
road did not abut the property now owned individually by one of =
the=20
defendants in the instant case (now sued in his capacity as a =
county=20
commissioner), but the 1998 plat shows the road to hug the lines =
of that=20
property; the 1981 plat reflects the roadway to meander, but the =
1998 plat=20
shows the roadway to be virtually straight lines; Hammett, the =
surveyor,=20
testified that the county commissioner had instructed him to show =
the=20
roadway on the 1998 plat abut and adjoin boundary lines, not as =
being=20
situated entirely on the Graff property as reflected on the 1981 =
plat. In determining the =
proper=20
location of a survey line, "[t]he cardinal rule is that the =
footsteps of=20
the original surveyor, if they can be ascertained, should be =
followed."=20
Hurr v. Hildebrand, 388 S.W.2d 284, 288 (Tex. Civ. =
App.--Houston=20
1965, writ ref'd n.r.e.); see also Humble Oil & =
Ref. Co.=20
v. State, 162 S.W.2d 119, 132 (Tex. Civ. App.--Austin 1942, =
writ=20
ref'd). The problem is that the plat of the 1981 survey of the =
road left=20
no ascertainable footsteps which can be followed and, even if they =
could=20
have been followed, the road shown on the1998 plat plainly does =
not follow=20
them. Accordingly, if we =
are to=20
follow the principle of stare decisis, it would seem that we are =
faced=20
with the dilemma of deciding which precedent we are to follow: the =
general=20
principles of law concerning the sufficiency of descriptions =
involving=20
interests in real estate or the law as this Court determined to =
apply to=20
the description of the roadway in this case. The general law, as I =
perceive it to be, having more impact and being dictated by higher =
courts=20
is the one I choose to follow. Bailey C. =
Moseley Justice Date Submitted: =
January 16,=20
2008 Date Decided: =
February 20,=20
2008 1. Unless otherwise specified, we will refer =
to the=20
appellees collectively as the commissioners. Ward, Caton, Hausler, =
and=20
Whittle, in their official capacities, filed a brief which merely=20
concurred with the brief filed by Whittle and Berry in their =
personal=20
capacities. We note Red River County has not been joined as a =
party. The=20
parties have not briefed whether Red River County is a necessary =
party to=20
this appeal.=20
2. We note Graff complains he is being =
improperly=20
taxed for the public road. Graff has not adequately briefed this =
issue,=20
and the improper taxation argument is overruled as both =
multifarious and=20
inadequately briefed. Texas law grants us discretion to summarily =
overrule=20
any multifarious or inadequately briefed points of error. See, =
e.g., Foster v. State, 101 S.W.3d 490, 499 (Tex.=20
App.--Houston [1st Dist.] 2002, no pet.); H.B. Zachry Co. v. =
Ceco=20
Steel Prods. Corp., 404 S.W.2d 113, 133 (Tex. Civ. =
App.--Eastland=20
1966, writ ref'd n.r.e.); see also Tex. R. App. P. 38.1. =
Although=20
Graff's first point of error is multifarious, we address his =
remaining=20
arguments in the interest of justice.=20
3. This Court stated, "[I]t would be =
inconsistent for=20
the court to find that the strip in question was both a public =
road and an=20
easement." Graff v. Whittle, 947 S.W.2d at 641. We note =
an=20
easement can be either public or private. This statement, though, =
is=20
contained in a paragraph addressing the trial court's alternative =
findings=20
that "if the property was not a public road, it would be an =
easement=20
(specified the three different types of easements sought by =
Whittle and=20
Berry as alternatives)." Id. The three different =
easements=20
(prescription, necessity, absolute necessity) found in the =
alternative by=20
the trial court's judgment were private easements. We believe that =
this=20
Court's statement is most correctly interpreted as holding that a =
finding=20
of a public road is inconsistent with a finding of a private =
easement.=20
Further, the context of this Court's statement clearly indicates =
it was=20
deciding between the alternative methods of establishing an =
interest in a=20
road rather than deciding whether the county owned the road in fee =
simple.=20
Neither the trial court's judgment nor this Court's opinion on =
appeal=20
decides whether the county owns the road in fee simple or merely =
has an=20
easement. A county can own a public road in fee simple or have an=20
easement. See City of San Antonio v. City of Boerne, 111 =
S.W.3d=20
22, 31 (Tex. 2003). The nature of the county's interest in the =
road has=20
not been briefed to this Court.=20
4. The record contains a copy of the =
commissioners=20
court minutes approving the 1998 plat.=20
5. Whittle, who had been a party to =
Graff I,=20
had been elected a county commissioner.=20
6. We note the record does not contain any =
orders or=20
other evidence of the commissioners court proceedings in 2006 =
creating a=20
first-class road with a sixty-foot right-of-way. We note a county =
may=20
prove certain omissions in the record by extrinsic evidence. =
See Hill=20
v. Taylor County, 294 S.W. 868, 870 (Tex. Civ. App.--Eastland =
1927,=20
no writ). Even if these omissions could be proven with extrinsic =
evidence,=20
the parties have not directed us to where in the record such =
evidence is=20
located. The excerpts from the testimony from Graff II =
introduced=20
by Graff as summary judgment evidence establish that the new =
construction=20
will include a road with a sixty-foot right-of-way. The parties =
have not=20
directed us to where the record establishes that the commissioners =
court=20
classified this road as a first-class road, and we have not =
discovered, in=20
our own review of the record, any additional evidence of the =
commissioners=20
court proceedings.=20
7. In a habeas corpus appeal, the First =
District Court=20
of Appeals has suggested an appellant must make sure the document =
being=20
noticed is included in the record if the appellant wishes to =
challenge the=20
trial court's actions on appeal. Kaman v. State, 923 =
S.W.2d 129,=20
131 (Tex. App.--Houston [1st Dist.] 1996, no pet.). 8. We note the trial court's judgment was =
attached to=20
the summary judgment motion. The trial court did not err in taking =
judicial notice of the judgment in cause number 134-CV-5-93.=20
9. Graff argues res judicata does not =
prevent this=20
Court from reconsidering Graff II because it is not a =
final=20
judgment. In their motions for summary judgment, the commissioners =
argued=20
to the trial court that res judicata bars reconsideration of the=20
sufficiency of the description in Graff I. The =
commissioners=20
argued Graff II became "the rule of the case and is res =
judicata=20
on any question regarding sufficiency of the description." While =
the=20
commissioners did not rely on the doctrine of res judicata in =
their=20
briefs, the commissioners argued at oral argument that res =
judicata bars=20
reconsideration of Graff II on appeal. Although the =
doctrines of=20
res judicata and law of the case are closely related, they are not =
identical. While the doctrine of law of the case may bar a party =
from=20
challenging matters fully litigated and determined in the appeal =
of a=20
temporary injunction, res judicata requires the judgment to =
be final.=20
Compare State & County Mut. Fire Ins. Co. v. Miller, =
52=20
S.W.3d 693, 696 (Tex. 2001), with Texaco, Inc. v.=20
Parker, 373 S.W.2d 870, 872 (Tex. Civ. App.--El Paso 1963, =
writ ref'd=20
n.r.e.). Although the doctrine of law of the case applies to =
issues=20
decided in Graff II, res judicata does not apply.=20
10. We note the Waco Court of Appeals has =
questioned=20
the holding in Greer. See Steele v. =
McDonald,=20
No. 10-05-00266-CV, 2007 Tex. App. LEXIS 6120, at *14-15 (Tex. =
App.--Waco=20
Aug. 1, 2007, pet. denied) (citing Browning v. =
Prostok, 165=20
S.W.3d 336, 346 (Tex. 2005)). In AIC Management, the =
Texas=20
Supreme Court did not attempt to reconcile its holding with the =
definition=20
of void contained in Browning. See AIC Mgmt., =
2008 Tex.=20
LEXIS 64.=20
11. Copies of the pleadings in Graff I =
were=20
admitted as evidence in Graff II.=20
12. When asked at oral argument for a case =
holding a=20
judgment finding a public road to be void for an insufficient =
description,=20
Graff directed this Court to Las Vegas Pecan & =
Cattle, 682=20
S.W.2d at 257. While the Texas Supreme Court instructed the trial =
court to=20
include metes and bounds description on remand, the court did not =
find the=20
judgment to be void due to an insufficient description. =
Id.=20
Las Vegas involved a direct appeal of an implied =
dedication.=20
Id. As such, Las Vegas is clearly =
distinguishable=20
from the argument in this case. Our own research has not found any =
case=20
where a jury verdict, finding a public road by an implied =
dedication, has=20
been held to be void due to an insufficient description. See =
Tabor v.=20
Hogan, 955 S.W.2d 894, 897 (Tex. App.--Amarillo 1997, no =
pet.) (no=20
description in judgment); Uvalde County v. Barrier, 710 =
S.W.2d=20
740, 747 (Tex. App.--San Antonio 1986, no writ).=20
13. Provided the description is sufficient =
to provide=20
the "framework or skeleton," a court may resort to extrinsic =
evidence to=20
determine the width of an easement. W. Beach Marina, Ltd. v.=20
Erdeljac, 94 S.W.3d 248, 265 (Tex. App.--Austin 2002, no =
pet.);=20
see Wilson, 188 S.W.2d at 152; cf. Brown v. =
Texarkana,=20
269 S.W.2d 804, 809 (Tex. Civ. App.--Texarkana 1954, writ ref'd =
n.r.e.).=20
While we note this rule was announced in the context of an =
easement, we=20
believe this rule applies with equal force to public roads =
regardless of=20
whether the public road is an easement or owned in fee simple.=20
14. A county cannot abandon a road merely =
by failing=20
to maintain the road. See Rutledge v. Staner, 9 S.W.3d =
469, 472=20
(Tex. App.--Tyler 1999, pet. denied). "Common-law abandonment =
'occurs when=20
the use for which property is dedicated becomes impossible, or so =
highly=20
improbable as to be practically impossible, or where the object of =
the use=20
for which the property is dedicated wholly fails.'" Id. =
at 471. A=20
county can also order a public road to be abandoned under the =
procedures=20
delineated by the Texas Transportation Code. Tex. Transp. Code =
Ann. =A7=20
251.058 (Vernon 1999). A road can also be abandoned if a landowner =
encloses the road with a fence continuously for twenty years. Tex. =
Transp.=20
Code Ann. =A7 251.057(a) (Vernon 1999). Neither party has argued, =
and the=20
record does not establish, that the 1901 road had been abandoned.=20
15. Graff cites Scaling v. Denny, =
58 Tex.=20
Civ. App. 279, 125 S.W. 351, 353 (Tex. App.--Fort Worth 1909, no =
writ),=20
for the proposition that, when the width of a road is not =
described in a=20
judgment, the width of the road is the minimum width provided for =
that=20
class of road in the statute. In 1901, the minimum width of a =
third-class=20
road was twenty feet. Tex. Rev. Civ. Stat. art. 4685 (amended =
1911),=20
available at =
http://www.sll.state.tx.us/codes/1895/1895civ20.pdf.=20
Graff has failed to direct us to where this argument was presented =
to the=20
trial court. Thus, this argument is not preserved for our review.=20
See Tex. R. App. P. 33.1(a). Further, as discussed below, =
there=20
is no evidence the 1901 road is the same road as the road in =
dispute.=20
16. We also note that res judicata may bar =
the=20
commissioners from claiming the road in dispute was created in =
1901. In=20
Graff I, the jury found the road to be a public road by =
implied=20
dedication. See Graff v. Whittle, 947 S.W.2d at 641. The=20
commissioners' argument that the road was created by the =
commissioners=20
court in 1901 is inconsistent with a finding that the road was =
created by=20
implied dedication. The commissioners' argument could have been =
and should=20
have been litigated in Graff I. As such, res =
judicata may=20
preclude the commissioners from arguing in this lawsuit that the =
road was=20
created by the 1901 commissioners court minutes. Graff, though, =
does not=20
argue that res judicata bars the commissioners' claims. We are =
prohibited=20
from addressing unassigned error, i.e. a ground not presented in =
the=20
appellate briefs. Pat Baker Co. v. Wilson, 971 S.W.2d =
447, 450=20
(Tex. 1998); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d =
642, 645=20
(Tex. App.--Fort Worth 2003, no pet.).=20
17. Graff argues the width should be =
determined based=20
on the scale of the 1981 plat. However, Hammett testified by =
deposition=20
that the road on the 1981 plat was not drawn to scale and he did =
not=20
measure the width of the road when drafting the 1981 plat. Hammett =
agreed=20
the road was "one-car-wide" in 1981.=20
18. When a county establishes a road under =
the Texas=20
Transportation Code, the proper classification of a road and its =
width are=20
not issues of fact. Alexander, 640 S.W.2d at 78. A =
commissioners=20
court is merely exercising its statutory prerogative which cannot =
be=20
reversed absent an abuse of discretion. Id. As discussed =
above,=20
this case does not involve a road established under the Texas=20
Transportation Code.=20
19. We note the commissioners court, under =
the Texas=20
Transportation Code, is required to "classify each public road in =
the=20
county as a first-class, second-class, or third-class road." Tex. =
Transp.=20
Code Ann. =A7 251.007 (Vernon 1999). The parties have not briefed, =
nor do we=20
decide, how the commissioners court authority should be invoked.=20
20. Although Graff did not provide any =
evidence of=20
damages, the commissioners filed a traditional motion for summary =
judgment=20
and did not argue there was no evidence of damages.=20
21. This information was likewise not =
before this=20
Court in 2006.