Asher v. Jones County

• Decision Date: 10 May 1902
• Citation: 68 S.W. 551
• Parties: ASHER et al. v. JONES COUNTY.
• Court: Texas Court of Appeals

68 S.W. 551

ASHER et al. v. JONES COUNTY.

Court of Civil Appeals of Texas.

May 10, 1902.

Appeal from district court, Jones county.

Action by Jane Asher and another against Jones county. From a judgment for defendant, plaintiffs appeal. Affirmed.

C. C. Ferrell and H. G. McConnell, for appellants. Steele & Stinson, for appellee.

HUNTER, J.

This suit was an action of trespass to try title, brought by Jane and J. C. Asher to recover from Jones county the S. W. ¼ of section No. 15, Buffalo Bayou, Brazos & Colorado Railway Company land, situated in Jones county. The appellee county disclaimed all of said land, except the public road, 60 feet wide, across the same, and as to that it set up title by reason of condemnation proceedings had by the commissioners' court of Jones county in 1886. The plaintiffs proved title to the land, and the defendant county offered in evidence (1) the records of the commissioners' court, showing the order appointing the jury of view, consisting of five freeholders, who were ordered to lay out and mark the road, dated July 16, 1886; (2) report of the jury of view, dated November 27, 1886, showing a survey and field notes of the road as laid out by them, taking a strip of land from said quarter section, 60 feet wide, running from the S. W. ¼ thereof to the N. E. ¼ of the same, and assessing the damages to be paid by the county as compensation for land taken on sections 11 and 15 at $50; (3) the order adopting and approving the report of the jury of view, and establishing the road as laid out, and ordering it opened, but refusing to allow or pay any sum as compensation for the land taken. When the order establishing the road was offered in evidence, plaintiff's counsel objected thereto upon the grounds, among others, that no legal notice had been published or given as required by law, and the order showed affirmatively that the commissioners' court refused to pay any compensation for the land taken, and by reason thereof it was void, and did not affect the plaintiff's right to recover. The undisputed evidence showed that at the time the order was made the land belonged to S. M. Swenson, who resided in New York, but in 1895 the plaintiffs became the owners by purchase from Swenson's estate.

We think the court did not err in admitting the order establishing the road. It embodied the report of the jury of view, which report was adopted by the commissioners' court, and contained the following recital: "After having given notice by publication in the Texas Western [a weekly published at Anson, Texas] for four successive weeks; a copy of said notice and the affidavit of the editor, Hec A. McEachin, being herewith returned as part of this report." The original copy of the notice and affidavit of McEachin, who was proved to be the editor of the Texas Western at the time it was published, was offered in evidence by the plaintiffs for the purpose of proving that it was not a sufficient legal notice, because it did not run in the name of the state of Texas, and was not addressed to the sheriff or constable of the county, and executed by such officer by causing the same to be published as citations in suits are required to be published, etc. The notice was as follows: "Notice to Landowners. To the Houston and Texas Central Railway Company, S. M. Swenson, H. W. McCaffity, G. P. Price, and Others: Take notice that the undersigned jury, appointed by the commissioners' court of Jones county, Texas, to lay out, survey, and assess damages resulting from the establishment of a public road [definitely describing it, and the sections over which the road is proposed to be established] will on the 11th day of October, 1886, in discharge of our said duty, meet upon the following premises, to which you have some claim of title, to wit, [here the sections, by number and name of grantee, are described, the land in controversy being embodied], and then and there proceed to assess any damages to which you may be entitled on account of the laying out of said public road; and you are hereby requested and required to produce all evidence which you may desire to offer in...