Hidalgo County v. Johnstone, 1974.

• Decision Date: 26 January 1940
• Docket Number: No. 1974.,1974.
• Citation: 137 S.W.2d 825
• Parties: HIDALGO COUNTY et al. v. JOHNSTONE et al.
• Court: Texas Court of Appeals

137 S.W.2d 825

HIDALGO COUNTY et al. v. JOHNSTONE et al.

No. 1974.

Court of Civil Appeals of Texas. Eastland.

January 26, 1940.

Rehearing Denied February 23, 1940.

Appeal from Ninety-second Judicial District Court, Hidalgo County; Bryce Ferguson, Judge.

Action by Lillie M. Johnstone and husband against Hidalgo County and others, to enjoin defendants from opening a county public road over a tract of land owned by the named plaintiff. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered.

Robert E. Kirkpatrick, of Mercedes, and A. J. Ross, Jr., of Edinburg, for appellants.

Cameron & Hardin and Fred W. Hofstetter, all of Edinburg, for appellees.

FUNDERBURK, Justice.

Mrs. Lillie M. Johnstone "joined pro forma" by her husband, T. P. Johnstone, brought this suit against Hidalgo County and officials of said county in their capacity as such, seeking to enjoin the defendants from laying out, opening or establishing a county public road over and across a 16 acre tract of land owned by Mrs. Johnstone. The defendants sought to justify the action of the Commissioners' Court and of the County Judge and Commissioners on the ground that all preliminary steps necessary to authorize such action had been lawfully taken.

Plaintiffs' pleadings, among other things, alleged that the order of the Commissioners' Court purporting to approve the findings of the report of the Jury of View "is illegal, if not entirely void, in that it orders a road to be laid out which is a different road than the one recommended in the said report of the Jury of View."

Plaintiffs further alleged: "The acts of the defendants herein in attempting to open and establish the said road as described in the report of said Jury of View and/or the said road described in the said order of the Commissioners' Court purporting to approve the report of said Jury of View constitutes a gross abuse of discretion on the part of the defendants in that no public necessity exists for the establishment of either of such roads, but on the contrary the said road is sought to be established for the use, benefit and convenience of only a small number of private individuals and the said acts of such defendants, therefore, constitute a legal fraud upon the plaintiffs. Said road is not in fact sought to be established by virtue of any public necessity, but only in order to satisfy the desires of a few such individuals." By a trial amendment plaintiff added allegations presenting the contention that "no necessity, public, private or otherwise, exists for opening the road" because there existed a road lying south of the block across the north end of which the new road was proposed to be opened, which the defendants had permitted to be closed for a number of years.

In a jury trial only one issue was submitted. The verdict thereon purported to find "from a clear preponderance of the evidence" that "no public necessity exists, under the conditions shown by the evidence, for a road to be laid out and opened connecting the east end of the road referred to in the evidence as the McAllen Road or Alamo Road with the south Val Verde Road."

Before submission of said issue, the court overruled a motion of defendants for an instructed verdict for them, and after return of said verdict overruled defendants' motion for judgment notwithstanding the verdict. Sustaining motion of the plaintiffs for judgment in their favor upon the verdict, the court rendered such judgment, from which the defendants have appealed.

Plaintiffs' petition alleged that Mrs. Lillie M. Johnstone was the fee simple owner of the property in her own separate right and that she was served with a notice set out in said pleading, which appears to be sufficient and as to the sufficiency of which no complaint is made, except that such notice was not served upon her husband, T. P. Johnstone, who is living with her upon said land as their homestead. It is contended by appellees that condemnation of the land was void because of lack of notice to the husband of the owner. Upon this point neither party has cited us to any authority which can be considered of any material aid, nor have we found any. The question here is relevant only as involving the further question of jurisdiction of the Commissioners' Court to condemn and assess damages. It is our view that notice to the wife as owner was...