L. C. Hobbs v. Aluminum Company of America--Appeal from 20th District Court of Milam County

Hobbs IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-348-CV
L. C. HOBBS,

APPELLANT

 
vs.
ALUMINUM COMPANY OF AMERICA,

APPELLEE

 
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 21,461, HONORABLE HUME COFER, JUDGE PRESIDING

In 1988, appellant L. C. Hobbs sought to acquire the use of two public roads that the Milam County Commissioners Court (Milam County) abandoned in 1978 and 1986. Hobbs initially sued appellee Aluminum Company of America (ALCOA) and Milam County, asking that ALCOA be enjoined from obstructing his use of the abandoned roads and that the company be required to restore any portions of the roads that it destroyed after the abandonments. ALCOA successfully moved for partial summary judgment, arguing that limitations barred any action pertaining to the 1978 road abandonment. In a subsequent bench trial, the trial court rendered a take-nothing judgment on Hobbs's claims pertaining to the 1986 abandonment. Hobbs now appeals.

 
BACKGROUND

Hobbs owns a two-acre tract of land in Milam County. On June 12, 1978, the commissioners court voted unanimously to abandon a portion of the Pleasant Hill Road near his property. On November 24, 1986, the commissioners court unanimously voted to abandon a portion of County Road 460 near his tract. ALCOA built replacement roads and deeded them to the County before any road closures took place. ALCOA's subsequent disposition of the abandoned roads prevented Hobbs from using them, although the new roads provided him with access to his tract.

In 1988, Hobbs sued Milam County and ALCOA, claiming that his property abutted Pleasant Hill Road and that he had acquired a prescriptive right to use this road. He claimed that because he and his predecessors-in-title used these roads continually for over ten years before the 1978 road-closure date, he had acquired a "private right" to the continued use of the roads. He sought to enjoin ALCOA and Milam County from interfering with his continued exercise of this right. Because by this time Pleasant Hill Road had been destroyed, he also sued for its restoration to its former condition. The trial court found that limitations barred his cause pertaining to the 1978 closing of Pleasant Hill Road and granted partial summary judgment in favor of defendants. Hobbs subsequently non-suited Milam County and filed an amended petition against ALCOA in which he reurged his claim to a prescriptive private right to the continued use of both roads. Hobbs sought to enjoin ALCOA from interfering with that right and he asked that ALCOA be required to restore those portions of the roads that may have been destroyed.

The trial court rendered a take-nothing judgment on Hobbs's claim and he appeals. He argues that the trial court failed to consider his private right to use the road and that the court misapplied the law when it rendered judgment for ALCOA. Hobbs also alleges that ALCOA's earlier partial summary judgment on the Pleasant Hill Road closing was premised upon an erroneous application of a two-year statute of limitations.

 
ANALYSIS

Hobbs's first four points of error challenge the trial court's reliance upon the County Road and Bridge Act (1) when rendering a take-nothing judgment on his cause. He asserts that his actions against ALCOA are premised upon a claim to a prescriptive "private right" by which he is entitled to continued use of each of the roads at issue. He argues that a party whose land abuts a road acquires a common-law private right to the continued use of that road, notwithstanding a commissioners court's statutory authority to abandon a public road under the County Bridge and Road Act. In support, Hobbs cites Smith County v. Thornton, 726 S.W.2d 2 (Tex. 1986); Meyer v. Galveston, H. & S.A. Ry. Co., 50 S.W.2d 268 (Tex. Comm. App., holding approved, 1932); and Moore v. Commissioners Court, 239 S.W.2d 119 (Tex. Civ. App. 1951, writ ref'd); Commissioners' Court v. Kaiser, 23 S.W.2d 840 (Tex. Civ. App. 1929, writ ref'd). ALCOA argues that the county's compliance with section 2.002 of the Act allows ALCOA to defeat Hobbs's cause.

We need not decide whether Hobbs's common-law cause of action coexists with the Act or whether that statute extinguishes Hobbs's alleged action. Even assuming that Hobbs's action enjoys a continuing vitality, we do not think that Hobbs is entitled to reversal. In reviewing the cases on which Hobbs relies, we note that each involved a landowner whose property abutted a thoroughfare. A finding that a landowner's property abuts the thoroughfare is a critical element of this common-law action.

In the instant case, however, the parties dispute whether the Hobbs tract abuts any road or portion of road that has been abandoned. Hobbs maintains that his tract abuts the abandoned portion of County Road 460, but ALCOA introduced testimony at trial that Hobbs's property is just south of the abandoned portion of the road. In addition, ALCOA also introduced evidence that Hobbs maintains his right of ingress and egress using portions of the road that were not abandoned.

Whether Hobbs's property abuts the road was a fact question that required the fact-finder to determine if the commissioners court's order abandoned all of the road, or merely a portion of it. After judgment was rendered favoring ALCOA, Hobbs timely requested findings of fact and conclusions of law. When the court failed to sign the proposed findings and conclusions, Hobbs did not file a "Notice of Past Due Findings of fact and Conclusions of Law." See Tex. R. Civ. P. Ann. 297 (Supp. 1992). "Where findings of facts and conclusions of law are not made, the judgment of the trial court will be affirmed if there is any evidence in the record sufficient to support it on any theory authorized by law." Cameron v. MacDonell, 659 S.W.2d 911, 912 (Tex. App. 1983, no writ) (citing Lewkowicz v. El Paso Apparel Corp., 625 S.W.2d 301 (Tex. 1981)). We presume that the trial court based its judgment upon implicit findings supported by the evidence; we therefore overrule the first four points of error.

In his fifth point of error, Hobbs addresses the trial court's grant of summary judgment regarding the 1978 abandonment of Pleasant Hill Road. In order for summary judgment to be proper, ALCOA must establish that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In reviewing the summary judgment, we must view the evidence in the light most favorable to Hobbs, the non-movant, and resolve all doubts and inferences in his favor. Id. at 548-49. Hobbs does not charge ALCOA with failure to eliminate disputed fact issues; rather he complains that ALCOA was not entitled to judgment on the basis of the two-year statute of limitations. We disagree.

The two-year statute of limitations applicable to actions for closing or abandoning roads provides that

 

(a) A person must bring suit for any relief from the following acts not later than two years after the day the cause of action accrues:

 

* * *

 

(2) the adoption by a commissioners court of an order closing and abandoning, or attempting to close and abandon, all or any part of a public road or thoroughfare in the county . . . .

 

Tex. Civ. Prac. & Rem. Code Ann. 16.005 (1986) (emphasis added). The statute also provides that the "cause of action accrues when the order . . . is passed or adopted." Id. 16.005(b).

The statute requires that a suit "for any relief" must be brought within two years of the order abandoning the road. ALCOA attached to its motion for summary judgment a copy of the commissioners court's order abandoning Pleasant Hill Road dated June 12, 1978. The record shows that Hobbs did not bring his cause of action until August 24, 1988, some ten years later. Even assuming that Hobbs acquired a private right to use a road abutting his property, the two-year statute-of-limitations would bar suit to enforce that right. We overrule Hobbs's fifth point of error.

 
CONCLUSION

Having found no error, we affirm the judgment of the district court.

 

Bea Ann Smith, Justice

 

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Affirmed

Filed: August 26, 1992

[Do Not Publish]

1. Tex. Rev. Civ. Stat. Ann. art. 6702-1, 2.002(e) (Supp. 1992).