Bradford v. Moseley

• Decision Date: 06 June 1920
• Docket Number: (No. 127-3011.)
• Citation: 223 S.W. 171
• Parties: BRADFORD et al. v. MOSELEY et al.
• Court: Texas Supreme Court

223 S.W. 171

BRADFORD et al. v. MOSELEY et al.

(No. 127-3011.)

Commission of Appeals of Texas, Section B.

June 6, 1920.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Mrs. Margaret C. Moseley and others against J. H. Bradford and others to enjoin the maintenance of a road. A judgment for defendants was reversed by the Court of Civil Appeals, and the injunction granted (190 S. W. 824), and defendants bring error. Reversed, and judgment of the district court affirmed.

W. F. Smith, of Palo Pinto, and Ritchie & Cousins and J. T. Ranspot, all of Mineral Wells, for plaintiffs in error.

W. H. Penix, of Mineral Wells, D. M. Alexander, of Ft. Worth, and H. L. Moseley, of Weatherford, for defendants in error.

Statement of the Case.

KITTRELL, J.

The litigation in this case arose over the opening of a road. Defendant in error Bradford owned and lived on a survey of 160 acres in Palo Pinto county which lies wholly within and is entirely surrounded by a ranch of 3,000 acres. Mrs. Moseley, one of the defendants in error, owns a life estate in the ranch, and the children of her husband and herself, eight in number, own the fee-simple title, subject to the life estate. For the sake of brevity, we will condense this statement, by setting forth only enough of the facts revealed by the pleadings, evidence, briefs, and the opinion of the Court of Civil Appeals as are necessary to an understanding of the case.

The proceedings taken to establish the road are marked by unusual regularity, and are in close, if not, indeed, in entire, conformity with the statutory requirements. Scrupulous care seems to have been taken to ascertain all of the jurisdictional facts, and notice was given to Moseley and his wife, and the jury of view sworn, all of which appears from the record. Mr. and Mrs. Moseley, after the road had been established, in the sense that it had been ordered opened, applied for and obtained a temporary injunction to stop any further action looking toward an actual opening of the road. Later that injunction was dissolved. The plaintiffs in that proceeding not prosecuting the appeal of which they gave notice, the commissioners' court proceeded to open the road; whereupon the plaintiffs amended their petition, and alleged that the action of the commissioners' court was void for a number of reasons assigned, and praying that maintenance of the road be enjoined, and that the fences erected to fence off the road from the balance of the ranch be removed.

Upon a hearing of the case on its merits, judgment was rendered against the plaintiffs, and injunction denied. The trial court found that Bradford had no road or outlet from his place to the public road, except across a survey owned by the Moseleys, and that for years Bradford had had what is termed a "gated road" to the Lipan road, by which we take it is meant there was a gate opening out the Moseley property into the Lipan road, and that road led from the gate to Bradford's house.

The survey of the road that was opened seems to have been very carefully made, and shows that from Bradford's house to the junction of the Lipan road, along the line fixed by the commissioners' court, it is a fraction over 2,136 feet; and the road was classed a second-class road, 30 feet wide. The only objection made on any ground concerning the proceedings taken by the commissioners' court is that the notice provided by the statute was not served on the children, the remaindermen. The only other ground of complaint made by the Moseleys, except that the action of the court was on legal grounds void, was that, "when the matter of the petition for said road came up for a hearing, the said court declined to permit the plaintiffs to introduce any evidence as to the necessity of opening said road."

From an adverse judgment on the merits, the defendants in error perfected their appeal to the Court of Civil Appeals, which court reversed and rendered judgment granting the injunctive relief prayed for and requiring removal of the fences erected on the sides of the road that was opened. Whether that judgment was correct is the question presented for our determination.

Opinion.

The plaintiffs below (defendants in error here), among other grounds set up by them why the proceedings to open the road were "without authority of law and void," alleged "that the plaintiff Mrs. Margaret C. Moseley had a life estate in the land of said Moseley ranch, and the remainder, or fee, to said land is in her said children above named, and plaintiffs alleged that no such notice as is required by law was served on her and her said children," etc.

The record reveals that the father and mother were served personally by the sheriff and return duly made, but there was no service on the children.

As we construe the opinion of the Court of Civil Appeals, it did not consider or deal with the question of lack of notice to the remaindermen, but dealt only with the question of the sufficiency of the evidence to show notice to the mother and father.

In such state of the record the question presented itself to our minds whether we should hold the whole proceedings to have been void and leave the case as it was left by the Court of Civil Appeals on other grounds, or whether we should decide the questions involved as they relate to or affect those who, as parties, inaugurated the litigation.

In view of the fact that the life tenant has a present interest in the subject-matter of the controversy, and that she is unquestionably bound by the action of the commissioners' court in the absence of abuse of its discretion by that court, and of the further facts that the remaindermen could exercise no control over the property, nor interfere with their mother's management except to prevent waste, and that they are not bound by the order of the commissioners' court because they were not parties to the proceedings, and are therefore left free to hereafter assert such rights, and to seek such relief as they may be entitled to, we have concluded that it is our duty to decide the case in the form in which it is presented.

By the terms of section 1, art. 5, of the Constitution, commissioners' courts are made part of the judicial system of the state, and by section 8, art. 5, the district court is given appellate jurisdiction and general supervisory control over such courts, and by section 18 they (commissioners' courts) are given such power and jurisdiction over all county business as is conferred by the Constitution and laws. Among other powers conferred and duties imposed upon them is "to lay out and establish, change and discontinue public roads and highways." Article 2241, Vernon's Sayles' R. S. They are given power to, and it is made their duty to, order the laying out and opening of public roads when necessary. Article 6860, Vernon's Sayles' R. S. Being created by express constitutional provision, they are not courts of limited and special jurisdiction, but courts of general jurisdiction in the sphere of the powers conferred on them. Williams v. Ball, 52 Tex. 603, 36 Am. Rep. 730; Gaines v. Newbrough, 12 Tex. Civ. App. 466, 34 S. W. 1048.

They are expressly held to be courts of record. Gano v. Palo Pinto Co., 71 Tex. 102, 8 S. W. 634. They must authenticate all official acts when such authentication is required by a seal prescribed by statute. R. S. art. 2278.

From the statutes and decisions the following rules of law and procedure are clearly deducible:

First, that the notice prescribed by statute must be given the owner, and, if it is not given, opening of the road may be enjoined. McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Powell v. Carson County, 62 Tex. Civ. App. 197, 131 S. W. 235; Evans v. Santana, etc., 81 Tex. 622, 17 S. W. 232.

Latitude and discretion is allowed commissioners' courts in the matter of opening roads, and, it being their duty to open roads "When necessary," they may act upon their own motion. Huggins v. Hurt, 23 Tex. Civ. App. 404, 56 S. W. 944; Allen v. Parker, 23 Tex. Civ. App. 536, 57 S. W. 703, writ of error denied.

The language of the statute (subdivision 7, art. 2241) as to "the power and duty of the commissioners' court as to courthouses and jails" is exactly the same as is subdivision 3, relating to roads, and it has been expressly held that the exercise of that power is left to the discretion of the commissioners' court. Cresswell, etc., v. Roberts, etc. (Civ. App.) 27 S. W. 737; Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S. W. 129; Stratton v. Commissioners (Civ. App.) 137 S. W. 1170. That discretion, unless...