Allen v. Parker County

• Decision Date: 12 May 1900
• Citation: 57 S.W. 703
• Parties: ALLEN et al. v. PARKER COUNTY.
• Court: Texas Court of Appeals

57 S.W. 703

ALLEN et al. v. PARKER COUNTY.

Court of Civil Appeals of Texas.

May 12, 1900.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Injunction by John W. Allen and another against Parker county. From a decree dissolving a temporary injunction and dismissing complainants' bill, they appeal. Affirmed.

McCall & Temple, for appellants. Alexander & Fain, for appellee.

CONNER, C. J.

This was an injunction suit instituted in the district court of Parker county on the 26th day of August, 1889, to enjoin the opening of a second-class road, "beginning at the north end of the Brazos River Bridge, on the Stephenville and Weatherford road, and running west up said river to what is known as the `Old Ferry Crossing,' through the lands of the petitioners, J. W. Allen et al., and ending at what the order calls an `intersection with the Weatherford and Brock road.'" A temporary writ of injunction was issued as prayed for, in accordance with the order of the district judge. The case coming on for trial on October 6th thereafter, the court sustained appellee's exceptions to the writ and to the petition, dissolved the injunction, and dismissed the suit, appellants declining to amend; hence this appeal.

It appears, among other things, from the petition and exhibits, that the order of the commissioners' court establishing the road in question was as sought in a petition signed by C. N. Turner and 21 others, whose qualification as signers is not questioned. It is averred that such order was void, in that no notice of said application was given as required by article 4686, Rev. St., and in that said road was not laid out by a jury of review as provided by article 4688. It appears, however, that appellant Allen and others agreed, a contest arising, that the commissioners' court should view out the several routes involved in the contest, and abide by its selection and assessment of damages; that three of the commissioners, without being sworn as a jury of view, viewed out the proposed routes, and reported to the commissioners' court, recommending the route designated in said petition of Turner and others, and assessing appellant Allen's damages in the sum of $10. Appellant Allen appeared before the commissioners' court, contesting the opening of the road, and duly gave notice of appeal to the county court from the order of the commissioners' court adopting the report of said commissioners, and assessing his damages in the sum of $30. It was alleged in the sworn answer of appellee that the amount of damage specified and claimed by Allen before said commissioners' court hearing was $250, and it was, in effect, admitted in argument in behalf of appellants before this court that said sum constituted the extent of the damage involved, it not being alleged that appellant S. C. Davis suffered damage in any sum whatever; his alleged interest in the controversy being that of a citizen of Parker county, residing in the neighborhood of said road, who with others had joined in recommending another route, and who had not joined in the agreement to abide by the selection of the commissioners' court.

If the case be construed as one involving damages alone, as appellee insists, then, under the terms of our amended constitution, the district court was without jurisdiction, and its order dismissing appellants' suit was proper, without respect to other grounds upon which such order was based. See Const. art. 5, §§ 8, 16; Dean v. State (Tex. Sup.) 31 S. W. 185; Lazarus v. Swafford (Tex. Civ. App.) 39 S. W. 389; State v. Hanscom (Tex. Sup.) 37 S. W. 601. We incline to the opinion, however, that the district court had jurisdiction. This question is to be determined from the allegations of the petition, and the complaint therein was to the effect that appellants' land was about to be taken by virtue of an order and proceedings alleged to be void. No amount of damage was alleged or sought to be recovered. No other court is given jurisdiction, and the action would seem, therefore, to fall within the residuary clause of section 8, art. 5, of the constitution, which provides that the district court "shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this constitution." So assuming, we shall proceed to dispose of the questions presented relating to the merits.

As before stated, the petition alleged that no written notice of the application of C. N. Turner and others had been given as required by article 4686 of the Revised Statutes, and no jury of review had ever been appointed by the commissioners' court, as provided in article 4688, Id. These facts were not denied in the answer, and must, therefore, be taken as true. In the case of Cummings v. Kendall Co., 7 Tex. Civ. App. 165, 26 S. W. 439, in an opinion by Judge Fly, it was held, in effect, that the "full powers" granted commissioners' courts by article 4671, Rev. St., to lay out and open public roads, were qualified by the concluding terms of the article "as hereinafter prescribed," and hence that the several proceedings prescribed by the succeeding articles, such as the appointment of a jury of view, the notice by them to be given, etc., were jurisdictional facts, without which an order of the commissioners' court establishing a road was a nullity. To the same general effect is the case of Vogt v. Bexar Co., 5 Tex. Civ. App. 272, 23 S. W. 1044, decided by the San Antonio court, and the case of McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027, by the commission of appeals, and adopted by the supreme court. In the latter case it was expressly held that the fact that the owner appeared before the commissioners' court and urged his claim for damages did not constitute a waiver of the notice by the jury of view required by the article of the statute quoted. It is not easy, perhaps, to distinguish those cases from the one at bar, but we nevertheless conclude that the proceedings mentioned are not jurisdictional, in the sense that they cannot be waived by the owner of land through which a road is established by the commissioners' court. It is perhaps not unworthy of consideration in this connection to notice that our supreme court, in the case of Sneed v. Falls Co., 91 Tex. 168, 41 S. W. 481, expressly declined to indicate whether a compliance with the statutes in some of the particulars involved in this case was necessary in order to legally lay out a road, notwithstanding the question was not before it. Section 18, art. 5, of the constitution after directing the number and manner in which commissioners shall be selected, declares that "the county commissioners so chosen, with the county judge as presiding officer, shall compose the county commissioners' court, which shall...