                            EXAS




Honorable E. Paul Banner       Opinion No. C-389
County Attorney
Hunt County                    Re:    Whether persons entering
Greenville, Texas                     a state highway right of
                                      way enclosed by an un-
                                      authorized fence, can be
                                      prosecuted under Article
                                      1377b, Vernon’s Penal Code,
Dear Mr. Banner:                      and related questions.
     Our opinion has been requested on five questions based
on the following fact,6as submitted by you.
       “The owner of land adjaoent to both sides of
    a state highway bridge (which crosses the Sablne
    River) . . . has built and maintains a stockpass
    and private underpass underneath said highway
    bridge. ”
     Both tracts of land connected by the stockpass are si-
tuated on the north side of the Sabine River. The land being
used for the road and bridge ~has been acquired in part by
prescriptive easement created in favor of the public in gen-
eral for road purposes and in part by deed to the Texas High-
way Department. Permission to use the land underneath the
bridge for a stockpass was granted to the landowner in a
letter from the District Engineer of the Texas Highway Depart-
ment, but a written agreement has not been executed by the
parties.
     While attempting to make a complete enclosure, you state
that a fence encloses the land on three sides and runs along
the side of the bridge and underneath the bridge. The fence
does not cross the river but “goes down to the water’s edge,
and cattle cannot go up and down the river below the fence. . . .
The water stands 10 to 20 feet deep in the river - cattle
never cross it. ”
     Gates have been placed under the bridge along the fence
for the “use of the Highway Department in making repairs to
the bridge, etc. ”


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Hon. E. Paul Banner, page 2 (C-389)

       "People go through the gates and some of them
    camp under the bridge, and they leave the gates
    open on many occasions, and they prevent the owner
    of the use of the easement for grazing, . . . and
    people fish from the bank, . . . and land boats
    on to the river."
     You have further advised us that the portion of Sabine
River involved in this matter comes within the purview of
Article 4026b, Vernon's Civil Statutes, and is 'non-navi-
gable" in so far as all hunting and fishing rights on and
along said stream are concerned, provided, however, that
the State of Texas is not divested of whatever title it may
have to the bed or waters of said stream.
     In connection with these facts, you have requested the
opinion of this office as to the following questions:
        "1 . Can an individual who is not an employee
     or agent on duty with the state highway depart-
     ment be prosecuted for trespassing under Article
     1377b, Section 1 (c) of Vernon's Penal Code if they
     go upon the easement under such conditions as des-
     cribed above?
        "2 . Can an individual be prosecuted under
     Article 1352 for failure to close the gates
     above described that are provided for access
     for the highway department only?
        "3. Can an individual be prosecuted for
     camping under a bridge on the highway, if
     there is not a fence or stockpass under such
     bridge?
        "4. Does a flat, metal stock gate, the type
     that you drive across on a road, constitute part
     of a fence to form an enclosure for the purpose
     of prosecution under Article 1377b, Section 1
     (cl?
        "5. Can an individual be prosecuted for
     crossing a stockpass and crossing over the
     easement to land a boat or fish on the banks
     of a stream along such easement, when such
     stockpass is fenced and enclosed under Article
     1377b, Section 1 (b)?



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 Hon. E. Paul Banner, Page 3 (C-3p9)

     We will answer your questicdlsinthe order they were sub-
mitted.
     Question No. 1 involves Article 1377b, Section 1 (c),
which reads as follows:
        "No person shall enter or attempt to en-
     ter upon the enclosed land of another with-
     out consent of the owner, proprietor, lessee,
     or person in charge thereof, and camp or
     attempt to camp or in any,,mannerencroach
     upon or damage such land.
     Article 6674n-1 Vernon's Civil Statutes provides that
“The Texas Highway Department may enter into written agree-
ments with owners of the lands abutting or adjoining the
lands acquired by the Department for right of way for any
highway, farm to market road, or other roadway in the
State Highway System, under the terms of which such owners
of abutting or adjoining lands may be authorized to use and
cultivate such portions of the right of way at may not be
required for immediate use of the department. . . . "Such
agreements shall be executed by the owners of the adjoining
or abutting lands and the State Highway Engineer or his au-
thorized representative." (Emphasis added.)
     The language of the statute indicates that the agree-
ment is to be in writing and signed by both parties, and that
the agreement could not be authorized until such formalities
were observed. Gi~lbertv. Texas Co., 218 S.W.2d 906 (Tex.
Civ.App., error ref. n.r.e.); "If the reduction of the agree-
ment to writing is thus made necessary, an assent to the
writing as a sufficient one must also be manifested; thiz
manifestation commonly consists of signing and delivery.
Corbin 'onContracts, Vol. 1, Section 32, p. 126. The letter
from the District Engineer referred to above does not con-
stitute a written agreement as contemplated by the statute.
We therefore hold under the facts stated, that the landowner
does not have the lawful authority to place a fence on the
highway right of way and that a person who crossed the en-
closure in order to reach the right of wa would not be in
;;;Ftion of Article 1377(b) Section 1 [c Ternon's Penal
    . The answer to Question No. 1 is No.
     Question No. 2 refers to Article 1352, Vernon's Penal
Code, which is set forth as follows:




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Bon. E. Paul Banner, page 4 (C-389)

       "If any person shall break, pull down or
    injure the fence of another without his con-
                                     _ _the con-
    sent, or shall wilfully and without
    sent of the owner thereof open and leave open
    any gate leading into the enclosure of another,
    or shall knowingly cause any hogs, cattle,
    mules, horses or other stock to go within the
    enclosed lands of another without his consent,
    or shall tie or stake out, or cause to be tied
    or staked out to graze within any enclosed
    lands not his own and without the consent of
    the owner any horse, mule or other animal, he
    shall be fined not less than ten nor more than
    one hundred dollars, and in addition thereto
    may be imprisoned in jail not exceeding one
    year. "
     The gates in question are gates leading to a stockpass
located on a highway right of way without proper authority
for placing them there, and in our opinion, it would not be
a violation of this statute if they were left open without
the consent of the owner of the fence and gate. The answer
to Question No. 2 is "No."
     We are unable to answer your third question as you did
not state whether the land upon which the individual camped
was within the enclosure of another. Article 1377b, Section
1 (Cl'
     Question No. 4 concerns the nature of an "enclosure"
required under Article 13'i"i'b,
                              Section 1 (c) as defined in (d).
                                                                         (
     The pertinent portion of (c) is quoted as follows:
        "No person shall enter or attempt to znter
     upon the enclosed land of another. . . .
     Article 137713,Section 1 (d) defines enclosed land as
follows:
        "For the purpose of this Act enclosed land
     shall mean such lands as are used for agricul-
     ture and grazing purposes or for any other
     purpose, and enclosed by structure for fencing
     either of wood or iron or conbination thereof
     or wood and wire, or partly by water and stream,,
     canyon,,brush, rock or rocks, bluffs or island.
     The term "fence" in a statute in reference to the duty
of a railroad company'to fence its tracts, includes cattle
guards. 16A Words & Phrases 5 and cases cited therein.
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        3ion. E. Paul Banner, page 5 (C-389)

             The Court in Burch v. State, 67 S.W. 500 (Tex; Grim.
        1902)stated:
                "Webster defines a fence to be Ito enclose
             with a hedge, wall or anything that prevents
             the escape or entering of cattle; to secure by
             an enclosure.1"
               We conclude under this language that a fence which is
        partly   constructed by using a metal cattle guard or flat
        metal stock gate comes within the definition of "enclosed
        land" as contemplated by the statute, and we answer Question
        No. 4 “yes”.
             Question No. 5 refers to Article 1377b,   Section 1 (b),
        which is quoted below:
                "No person shall enter or attempt to enter
             upon the enclosed land of another without con-
             sent of the owner, proprietor, lessee, or
             person in charge thereof, and catch or attempt
             to catch fish from any pond, lake, tank, stream
             or any body of water therein."
             The enclosed land in question is partially comgos$d of
        highway right of way,,and we answer Question No. 5 ,No ,
        in so far as it relates to the facts presented for our
        consideration.

                            SUMMARY
                            --
                Under the facts stated when individuals pass
             through an enclosure constructed partially on a
             highway right of way without proper authority
             for said construction, in order to reach the
             right of way, the individuals are not guilty of
             violation of Article 1377b, Vernon's Penal Code.
                                   Yours very truly,

                                   WAGGGNERCARR
                                   Attorney General of Texas     h




                                   Assistant ittorney General
        cm :ms
                                      -1844-
Hon. E. Paul Banner, page 6 (C-389)

APPROVED:
OPINION CO-EE
W. V. Geppert, Chairman
Milton Richardson
Paul Phy
Grady Chandler
George Black
APPROVED FORTHEATTORNEYGENERAL
By: Stanton Stone




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