ST0301-CS051206I ~3uzan 'taylor- RE: pREscRIPTIVF: RIGH'F[C)F-W~Y
Page 1 I
From:
To;
Date:
Subject:
"James L. Brittain, R.P.L.S." <jlb@brittain-crawford.com>
"Suzan Taylo¢' <staylor@ci.coppell.tx.us>
12/6/2005 8:34:35 AM
RE: PRESCRIPTIVE RIGHT-OF-WAY
SUSAN,
THE REASON I DON'T KEEP OR QUOTE STATUTES IS BECAUSE ATTORNEYS FROWN UPON
NON-ATTORNEYS PRACTICING LAW. IT IS ESSENTIAL THAT YOU CONSULT THE CITY
ATTORNEY ON THESE MATTERS SO THAT YOU NOR I ARE PROVEN WRONG. THESE ARE
SIMPLE MATTERS FOR A GOOD ATTORNEY WHO KNOWS THE INDEXING OF VENON'S
ANNOTATED CIVIL STATUES, AND CAN FIND THE ACTUAL STATUTE YOU DESIRE. OFTEN
TIMES THE LAND OWNER HAS ALREADY CONTACTED THEIR ATTORNEY WHEN THEY ASK THE
QUESTION, AND YOU COULD BE EMBARASSED WHEN THEY ALREADY HAVE THE ANSWER.
ACCORDING TO "BLACK'S LAW DICTIONARY" TO CREATE AN EASEMENT BY
"PRESCRIPTION" THE USE MUST HAVE BEEN OPEN, CONTINUOUS, EXCLUSIVE, AND UNDER
CLAIM OF RIGHT FOR STATUTORY PERIOD.
AS YOU CAN SEE, AS IN OTHER LAWS, INTERPRETATION OF THE LAW IS THE KEY.
YOUR CITY ATTORNEY SHOULD GIVE YOU THE TOOLS YOU NEED TO SPEClCALLY ADDRESS
THE LANDOWNERS QUESTIONS.
IF YOU DO GET SOME ACTUAL STATUTES FROM HIM, WOULD YOU COPY ME SO I CAN
HAVE THEM ON FILE AS WELL. THE LAST TIME I HAD TO GET THE STATUTES WAS OVER
FIFTEEN YEARS AGO, AND I HAD TO PAY MY ATTORNEY TO FIND THEM. EVEN WHEN I
HAVE LEGAL QUESTIONS, I CALL HIM SO THAT I WILL BE QUOTED CORRECTLY.
GOOD LUCK AND KEEP IN TOUCH.
JAMES L. BRITTAIN, R.P.L.S.
..... Original Message .....
From: Suzan Taylor [mailto:staylor@ci.coppell.tx.us]
Sent: Monday, December 05, 2005 4:38 PM
To: R.P.L.S. James L. Brittain
Subject: Re: PRESCRIPTIVE RIGHT-OF-WAY
I appreciate your help. I am writing letters to the property owners and
trying to explain prescriptive rights. The City Engineer said that he
had seen the statute at one time and wanted me to see if I could find a
copy.
Suzan Taylor
>>> "James L. Brittain, R.P.L.S." <jlb@brittain-crawford.com> 12/05/05
4:03 PM >>>
PRESCRIPTIVE RIGHT-OF-WAY
MANY ORIGINAL DEEDS RUN TO THE MIDDLE OF THE ROAD, ESPECIALLY OLD
COUNTY
ROADS. BEFORE CITIES, AND COUNTIES WERE MORE ORGANIZED, AND REQUIRED
RECORDED RIGHT-OF-WAY DOCUMENTS, ROADS WERE BUILT TO ACCOMMODATE THE
ADJOINING LAND OWNERS TO ALLOW COMMERCE BETWEEN ONE ANOTHER AND
[ Suzan ,~ylor - RE: PRESCRIPTIVE RIGHT-OF-WAY Page 2~
COMMUNITY
CENTERS. THESE ROADS MORE LIKELY THAN NOT DID NOT HAVE AN OFFICIAL
GRANT OF
THE RIGHT-OF-WAY AREA CONVEYED TO THE COUNTY OR CITY THAT INHERITED
THE
MAINTENANCE OF THE ROAD AND IT'S DRAINAGE FACILITIES (CULVERTS,
DITCHES,
ETC.).
WHEN A CITY OR COUNTY HAS MAINTAINED THIS ROAD OR THE PUBLIC (EVEN IF
IT
IS ONLY ONE NEIGHBOR) HAS BEEN ALLOWED TO USE THIS ROAD FOR A PERIOD OF
TIME
(LETS SAY SlX MONTHS OR LONGER) FOR ACCESS (VEHICULAR OR WALKING OR
STAGECOACH, ETC.)IT BECOMES A PRESCRIPTIVE RIGHT.
THE LIMITS OF THE PRESCRIPTIVE RIGHT-OF-WAY VARIES, BASED UPON WHAT
THE
CITY OR COUNTY HAS MAINTAINED, OR THAT THE ADJOINING LAND OWNER HAS
UNDER
FENCE. WHEN THE CITY OR COUNTY MAINTAINS A ROAD THE BORROW DITCHES ON
EACH
SIDE ARE INCLUDED TO THE LIMITS OF THE LAND OWNERS SIDE OF THE TOP
BANK.
IF AN ADJOINING LAND OWNER DECIDED TO FENCE THEIR PROPERTY TO THE
CENTER
OF THE ROAD, EFFECTIVELY BLOCKING ALL TRAFFIC FROM PASSING OVER THE
AREA
FORMERLY USED FOR PUBLIC PASSAGE, THIS WOULD CAUSE THE DAILEY COMMERCE
TO BE
DISRUPTED, AND CITIZEN'S RIGHTS TO BE PLACED AT RISK.
THIS CUSTOM OF PRESCRIPTIVE RIGHTS-OF-WAY AND THEIR USE AND
MAINTENANCE
HAS BEEN AROUND SINCE ROMAN TIMES.
PLEASE PASS THIS OPINION TO YOUR CITY ATTORNEY FOR HIS INPUT, AND GET
HIM
TO PROVIDE ACTUAL STATUTES IF NECESSARY.
I HOPE THAT I HAVE HELPED YOU UNDERSTAND THE EXTENT, AND VALUE OF
THE
UN-RECORDED PRESCRIPTIVE RIGHT-OF-WAY.
RESPECTFULLY SUBMITTED
JAMES L. BRITTAIN, R.P.LS.
CC: <thh@freese.com>