Real Property Affidavit That a Road Is Public
In Scott v. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998), the court of appeals found that the Scotts' filing of an affidavit in the real property records claiming the road was public was not sufficient to begin the prescriptive period. Scott, 959 S.W.2d at 722-723.
However, upon discovery of the affidavit by their attorney, the Scotts told the Cannons that they had a right to use the road. Id.
The Scott court held: "We believe that this is the type of distinct and positive assertion which we required in Wiegand [Wiegand v. Riojas, 547 S.W.2d 287, 290 (Tex.Civ.App.--Austin 1977, no writ)] to 'transform permissive use of an easement into an adverse use.'" Scott, 959 S.W.2d at 723.