County of Franklin v. Brooks

• Decision Date: 25 October 1887
• Parties: FRANKLIN CO. v. BROOKS.
• Court: Texas Supreme Court

5 S.W. 819

FRANKLIN CO. v. BROOKS.

Supreme Court of Texas.

October 25, 1887.

Appeal from district court, Franklin county; W. P. McLEAN, Judge.

Hiram Glass, for appellant. J. B. Stringer, for appellee.

STAYTON, J.

This action was brought by the appellee to recover damages for land appropriated by Franklin county for the purpose of a public road, and for injury resulting from the establishment of the road. The defense was a plea of the statute of limitations of two years. On September 22, 1876, the county commissioners' court for Franklin county appointed three persons to lay out a road from Mt. Vernon to Gray Rock, who on September 30 of same year, reported that the road should be opened on a line described in report, so much of which as has application to this case was as follows: "With the present road until it crosses the branch; then upon the line between T. M. Horton and J E. Brooks' land, with the blazes, to the corner of Horton's fence." The appellee had and has no objection to a road running on the line thus indicated for the road; but the overseer, who was appointed by the court to lay out the road in accordance with the report of the committee of review, which was adopted, did not open the road on this line, but on another which cut off a corner of appellees' land from the main body of his tract. The road thus opened was used and kept in order by the county continually, until November 22, 1884, but there was no act of the commissioners' court prior to the date last mentioned which asserted the right of the county to have the road run on the line where the road overseer placed it. At that date, however, a change was made in the road before it reached the land of the appellee; but in the change thus made it is conceded by the parties that the county commissioners' court recognized as a public road, and continued to use that part of the road opened by the overseer in 1876, which cut off a corner of appellee's land from the residue.

The injury done to his land by so running the road as to cut off this corner is the main basis for his claim for damages. This action was brought December 22, 1885. If limitations ran from the time the road was first opened, in 1876, the action was barred; otherwise it was not. Limitation would doubtless run from the time the county asserted a right to have the road where the overseer placed it, for from that time the appellee could have maintained an action; but he could have maintained no action against the...