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COMANCHE – The County courtroom was
packed with many DeLeon area residents and property owners on
Wednesday, April 26, to witness, and in some cases to testify, in the
Jury of View deliberations concerning county roads 462 and 459.
At the conclusion of the almost three
hour proceedings, the protestors were disappointed when the Jury of
View ruled that the two roads were indeed county maintained roads.
Attorney Bob Bass, who had been hired to
represent and assist Comanche County in complying with the
requirements of a new state law, conducted the meeting. The new law
mandates that all Texas counties must formally map all public roadways
that are county maintained and thereby establish a maintenance, or
proscription easement on the roads to which the county does not have
formal legal title.
Selection of the Jury of View
 Ten county residents were nominated, two
each from the precincts of the four County Commissioners and two
additional county residents by the County Judge, as potential members
for a Jury of View which would review the protests filed regarding the
official road map adopted by the Commissioners Court in a public
hearing in March.
Those nominated were, Reginald Gill, Mac
Pyburn, Bill Blue, Bill Lane, Ryan Sides, Mark Sides, Bob Huddleston,
John Weaver, Carl Williams and Doyle Smith. Smith, however, never
answered as being present.
Bass explained that the burden of proof
was upon the County to show that it has maintained the protested
roadways since prior to 1981.
Bass said, “If the County establishes
that to the satisfaction of the Jury of View, the road would be
retained in the County maintenance inventory.
If the County does not meet its burden of
proof, the maintenance only of that road would cease. This is not a
closing procedure. It simply is a question of maintenance. So, the
maintenance, if the County does not meet its burden of proof, will no
longer continue. The road will remain a public road. It won’t receive
public maintenance. So that is the task of the Jury of View.”
Bass added that the Jury of View would
meet and make its determination while in the public meeting, rather
than retiring for private deliberations.
In response to a request for
clarification by Commissioner Bobby Schuman, Bass added that there are
procedures for the closing of public roads, but that this meeting was
not one of them. The Jury of View would only determine if the County
would be able to continue maintaining the protested roadways, but not
if they would be closed to public access.
Bass added that if the County was not
allowed to continue maintenance on the roads in question, that after
the first hard rain, the roads might not be very usable, but that the
current meeting was not concerned with public closure.
Following the administration of an oath
of service by County Clerk Ruby Lesley, in which the potential members
swore they had no particular interest in either the roads or
protesting parties involved, a drawing was held to select the five
member panel.
Those selected were Ryan Sides, Bill
Lane, Bill Blue, Carl Williams and Mac Pyburn. The empanelled Jury of
View quickly agreed to select Bill Lane as their foreman.
Bass further explained that the findings
of the Jury of View were binding only upon the County. He added that
anyone who was dissatisfied with its determinations, whether or not
having filed a timely protest, could file an appeal in District Court
for two years thereafter.
Protest of CR 462
County Road 462 was the first protested
road to be considered. Bass introduced affidavits signed by
approximately a dozen area residents who stated their knowledge that
CR 462 was well defined and had been maintained by the County for many
years. Bass also showed photographs of the road to the Jury.
Bass pointed out a gas pipe line facility
that was located along the roadway and commented that public utilities
had the right under law to utilize public roadways in delivery of
their services, further underscoring the public nature of CR 462.
Bass then introduced attorney Phil
Robertson who brought Anna Marie (George) Lindley to the witness
chair. Robertson stated that the Wade George family farm runs along
either side of CR 462. He commented that there was not much that he
and Lindley could disagree with in the affidavits, “except, perhaps,
the area of maintenance and the time of maintenance that these folks
are talking about.”
Lindley stated that she was in the third
generation that has owned the farm and that she believed the subject
roadway dated from the 1920’s. She further stated that her family,
however, had always maintained the portion of the road that passed
through their farm. She did note that the County would sporadically
work on the road and did install tin horns; however, she added that
her dad would not allow the County to grade the roadway, preferring to
do it himself.
Lindley described the degradation of the
roadway that has occurred since her father became unable to continue
his road maintenance work during the 1980’s.
Lindley stated, “When it rains, it’s
almost impossible to go down that road. So we say there has not been
continuous proper… there has never been proper maintenance by the
County of this road.” She and Robertson then distributed photographs
to illustrate their contentions.
Lindley’s period of testimony ran
approximately 20 minutes. A portion of the time was spent in answering
questions from Bob Bass.
When Bass asked Lindley if her ultimate
objective was to have the road closed, she responded, “What my
ultimate objective there, is to have the County maintain the road in a
proper maintenance fashion.”
Bass then stated he had no further
questions, dismissed Lindley, printed out a Jury of View report form
on his computer, and then charged the Jury to make its determination.
He reminded them that their only matter to be determined was whether
the County had maintained that particular section of CR 462 since
before 1981.
After several minutes of deliberation and
delay, Bass announced that the Jury of View had determined by majority
vote that CR 462 had been maintained by the County since a date prior
to 1981 and should be retained in the County Road Map. Bass later
confirmed that the vote had been unanimous.
Protest of CR 459
When consideration of County Road 459
began, attorney Bob Bass again distributed a series of affidavits from
various persons who had knowledge that the County had long maintained
the road. The affidavits included one from Charles Nabors, who helped
his father, Lee Nabors, build Nabors Lake and the subject roadway back
in 1947. Bass also distributed a collection of photographs showing the
road.
Roger Murphey, president of the Nabors
Lake Development Corporation was the first to speak in protest of the
portion of CR 459 that crosses the dam on Nabors Lake.
Murphey commented that the Corporation
holds clear title to the entire lake and the dam. He said, “We filed
protest as a Corporation to protect the dam from excess public traffic
because the County has never maintained the road that goes across the
dam, and we have not been able to come to an agreement on the
possibility for maintenance or the liability for public traffic on top
of the dam by the County. The (Texas) Transportation Code, Section
258, says that if the County takes the road going across our dam that
they have to be responsible for maintenance on top and underneath the
area. And, the information we get from the County is they do not want
to take any responsibility for the maintenance of the dam… and that’s
what we object to.”
Mac McCowan next addressed the Jury. He
had a thick ring binder with information and photographs concerning
Nabors Lake and the road across the dam. He noted that the Texas
Department of Water Resources charged the Corporation, not the County,
with the responsibility for maintenance of the dam.
McCowan recounted the history of the
formation of the Corporation when the Nabors family was unable to make
required improvements to the original earthen dam that formed the
lake, how the Corporation received title to the lake and dam and made
the required improvements, how the improved dam was destroyed in the
flood of 1990 and then rebuilt with Corporation funds in 1991 after CR
459 had been out of service for around a year.
McCowan added that the Corporation feels
it can maintain the road on the dam better than the County can,
because it is their property and they will be more motivated to take
better care of it. He later stated that the County may have graded the
road from time to time, but that they have not properly maintained the
road and the underlying dam.
Jury of View members asked about
alternative routes for area residents and landowners if the dam road
were to be closed.
McCowan responded that they could get
there from Highway 6 and taking other county roads. He added that CR
457 had at one time been an alternative, but that the flood of 1990
had washed away the roadway leading to the bridge over the upper end
of the lake and that the County had elected not to replace it and had
cut off that alternative. McCowan stated that the Corporation’s main
concern was the earthen dam and expressed concern that if it were ever
to be lost again that there would probably never be funds again
available to replace it. He also indicated that the Corporation’s
ultimate goal was likely to be to close all public access to the dam
road.
Kenneth Dabney also testified regarding
CR 459, noting that his father had allowed Lee Nabors access across
his farm to the dam construction site and that the road continued in
public use without it ever having been formally granted the right to
do so.
Dabney also complained about the quality
of the County’s road maintenance and of its decision to abandon the
lake crossing on CR 457, which cut him off from direct access to a
portion of his farm.
Carol Maitland testified in protest
noting that it would be impossible for the County to prove it had
continuously maintained CR 459 since before 1981 since the road had
been out of service and maintenance for over a year in 1990 and 1991.
David Glover testified in opposition to
the protest by noting that the road had been maintained by the County
for almost 60 years. He also presented a large number of affidavits
signed by many area residents in support of continuing County
maintenance and described how important the roadway across the dam was
for him to access his farm land near the lake.
Sallie Hale and Margaret Rodgers, both of
who live on Nabors Lake and are either current or former members of
the Nabors Lake Development Corporation, testified on behalf of
continuing County road maintenance on the dam road and of the
difficulties that might ensue if the road were to be closed and gated.
Hale read a statement from Charles Nabors
regarding the history of the development of the lake. She also read a
statement from Prater Construction, the company that had rebuilt the
dam, which stated that the dam would not be harmed by road traffic.
Hale said that although the five-member
Board of Directors of the Development Corporation had voted to file
the protest, she had proxies from 20 of the 40 members of the
Corporation who desired that the dam road remain open to public access
and maintained by the County. She also noted that none of the
Directors live permanently on the lake, but live outside the County
and are only occasional lake residents.
Hale said that if the road were to be
closed, it would be a hindrance to the six residents who are full time
lake residents. She questioned the motives stated by the directors as
to why they felt the roadway should be closed, noting that the only
dam maintenance expenses paid for by the Corporation had been the
result of natural actions, not traffic damage.
Margaret Rodgers said that the County has
provided good maintenance on the road since she has lived there and
that her Honda Civic has had no problems driving over it, even in
times of heavy rain.
Susie Fagan also spoke in favor of
keeping the roadway open to the public, but stated her belief that if
it is to continue to be maintained by the County that the County
should also be responsible for maintenance of the dam.
Attorney Bob Bass stated that the
situation of a road across a privately owned dam was unclear in the
law as to the responsibility for maintenance of the underlying dam. He
then put the question before the Jury of View for a determination.
The unanimous verdict of the Jury of View
was that CR 459 had been maintained by the County since before 1981
and should be retained in the County Road Map Book.
Following the meeting, Roger Murphey,
president of the Nabors Lake Development Corporation stated his belief
that the ruling of the Jury of View would be appealed to District
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