Burleson County v. Giesenschlag

• Decision Date: 08 February 1962
• Docket Number: No. 13888,13888
• Citation: 354 S.W.2d 418
• Parties: BURLESON COUNTY, Appellant, v. Mrs. Eda GIESENSCHLAG et al., Appellees.
• Court: Texas Court of Appeals

Page 418

354 S.W.2d 418

BURLESON COUNTY, Appellant, v. Mrs. Eda GIESENSCHLAG et al., Appellees.

No. 13888.

Court of Civil Appeals of Texas, Houston.

Feb. 8, 1962.

Rehearing Denied March 1, 1962.

C. W. Karisch, Hempstead, for appellant.

Walter M. Hilliard, Caldwell, Charles C. Smith, Jr., Cameron, for appellees.

WERLEIN, Justice.

This is an appeal by Burleson County, Texas from a judgment dismissing its condemantion suit on the ground that the County Court did not have jurisdiction. In response to appellant's request for Findings of Fact and Conclusions of Law, the court found that the suit was based on two resolutions of the Commissioners Court of which were set out in full, and concluded that said resolutions, separately or together, were insufficient to confer jurisdiction on the court. the court did not state wherein such resolutions were insufficient.

It is not contended by appellee that the resolution of March 13, 1961 referred to in the petition for condemnation, and which was duly and unanimously adopted, does not accurately describe the land sought to be condemned and the owners thereof. It will suffice to say that such resolution conforms to statutory requirements, particularly Articles 3264 and 3264a of Vernon's Annotated Texas Statutes. It states in substance that the Commissioners Court found it necessary that the County acquire for public road purposes, in re-opening of the public road in question, a certain strip of land described by metes and bounds; that all attempts to agree with the owners (naming appellees) on a price for such right to way had been unsuccessful, and that further negotiations in that regard would be useless; and that it was necessary that condemnation proceedings be instituted to acquire such strip of land for public road purposes. The court then ordered that C. W. Karisch be and he was authorized and directed on behalf of the county to institute condemnation proceedings for the purpose of acquiring an easement along and over said strip of land for public road purposes.

We have carefully examined the resolution and find that it is sufficient and in proper form. The allegation in the petition filed in the County Court to the effect that the easement is for the purpose of opening, constructing and maintaining a permanent public road, and the allegation in the order of the Commissioners Court that it is necessary to acquire for public road purposes, in re-opening said road, the strip of land in question, do not constitute a material discrepancy or one that goes to the jurisdiction of the court. There is no necessary variance and certainly no fatal variance resulting from the use of the words 'open' and 're-open,' since either might be applied to opening a road that had been abandoned or closed.

An earlier resolution of the Commissioners Court indicates that there was a road apparently along and over the same strip which the County sought to condemn, but it is not shown whether such road was abandoned. It is shown, however, that such road was closed and obstructed by fences and that three or more freeholders and owners of land were being deprived of public means of access to their property by reason thereof. The resolution, which was adopted by the Commissioners Court prior to the resolution or order ordering condemnation of the strip of land in question, merely ordered that necessary steps be taken to re-open said road.

We think there can be no question that a county under Art. 3264a, V.A.T.S., may condemn a public road that has been abandoned or closed and obstructed by fences preventing use thereof. It may by means of condemnation proceedings open, re-open, construct, reconstruct, straighten widen or otherwise improve a road for public...