Crawford v. Frio County

• Decision Date: 29 January 1913
• Citation: 153 S.W. 388
• Parties: CRAWFORD v. FRIO COUNTY et al.
• Court: Texas Court of Appeals

153 S.W. 388

CRAWFORD v. FRIO COUNTY et al.

Court of Civil Appeals of Texas. San Antonio.

January 29, 1913.

Appeal from District Court, Frio County; J. F. Mullally, Judge.

Action by W. L. Crawford against Frio County and others. From a judgment dissolving a temporary injunction, plaintiff appeals. Reversed and remanded.

R. W. Hudson, of Pearsall, for appellant. Magus Smith and Mason Maney, both of Pearsall, for appellees.

TALIAFERRO, J.

This suit was instituted by appellant against Frio county for injunction to prevent the county from opening a second-class road through appellant's land. A temporary writ was issued, but upon trial before a jury the court gave peremptory instruction for the defendant, the injunction was dissolved, and the road ordered opened. There is no controversy as to the form or sufficiency of the petition, or of the manner of appointment and qualification of the jury of view. It is not disputed that the appellant was present with the jury of view when the road was surveyed and laid out and therefore had actual notice thereof. It is, however, a controverted question as to whether or not he had any notice or knowledge of the time and place that the jury would meet to assess the damages. F. G. Hugo, one of the jury, testified that he verbally notified appellant on the 10th day of October, and also prepared and mailed a written notice, addressed to him at Dilley, Tex., the place of his residence, on October 12, 1911. Appellant swore that he received no verbal notice and that he never received the letter, if it was mailed. The court admitted in evidence the report of the jury of view, showing that they duly notified appellant of the time of meetings and had assessed his damages at $132.50. Appellant and another witness testified to items of damage which would indicate that appellant's damages were much more than that sum. Appellee offered no evidence to contradict the testimony of appellant's witness as to the amount of damages, except the report of the jury of view.

Upon this state of the evidence the court charged the jury to return a verdict for the defendant in the following language: "The object of giving notice to the owner of land over which a road is proposed to be opened is to give the owner an opportunity to be present with the jury of view when they go over the route and making such representations to them in regard to the road as he may deem proper. As the plaintiff was present with the jury when they were at work on his land, it is immaterial whether he had been served with notice or not. The petition for the road and the order of the court granting it and appointing the jury of view defines the exact route to be followed; and the promise of J. C. and S. W. Hale, the parties in possession and claiming the land west of plaintiff's land, to donate the lands necessary for the remainder of the road, made it unnecessary for the jury of view to proceed with their work beyond plaintiff's land. Plaintiff therefore cannot complain on the ground that the jury did not proceed to view the road over the land of (the) Hales. There is nothing in evidence in this case tending to show any abuse of authority on the part of the county commissioners' court in connection with this proposed road, and you will therefore return your verdict for the defendants." Appellant's first assignment of error, on various grounds, attacks this charge of the court. The first proposition under this assignment of error is as follows: "Before appellant would be bound by the action of the jury of view in assessing damages for the taking of his private property for public use, five days' notice in writing of the time and place when said damages would be assessed by them was required to be served on him."

No contention is made that appellant did not have knowledge of the time when the jury would meet to lay out the road, so we must assume that it is conceded that the presence of appellant at the time the survey was being made by the jury was sufficient to estop him from denying that he had waived notice of such survey, and the statutory notice of that proceeding was thereby rendered unnecessary. And such is the rule laid down in Onken v. Riley, 65 Tex. 468.

But appellant earnestly contends that, inasmuch as the damages were not assessed at the same time the review was made, but at a later date, he was entitled to the statutory notice of the time and place when the jury would meet to assess such damages. And in this we agree with the appellant.

The power of "eminent domain" is the right of the sovereign to take private property for public purposes. The right is fundamental and inherent, and an inseverable adjunct to supreme power. The exigencies of commerce and enlightened social intercourse have rendered it necessary for the sovereign to delegate this power to counties and to certain public and private corporations. But it is an extraordinary and dangerous power, and its concession has always been surrounded by rigid limitations and carefully guarded from improper use.

The delegated power of eminent domain can only be conferred by express statute, and all such acts are strictly construed in favor of the person whose property is sought to be condemned. O'Neal v. Sherman, 77 Tex. 182, 14 S. W. 31, 19 Am. St. Rep. 743; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Cummings v. Kendall County, 7 Tex. Civ. App. 164, 26 S. W. 439; Cyc. vol. 15, p. 566, and cases there cited.

The power to condemn land for public road purposes has been conferred upon the counties. The power and its limitations, and the procedure by which it shall be exercised, are plain and simple; and not least among the limitations is that no citizen's land can be taken until he has had five days' notice "of the time when the jury of view will proceed to lay out such road or when they will assess the damages incidental to the opening of the same." Article 4691, R. S. 1895 (article 6880, R. S. 1911). Notice to the landowner is a requisite to the jurisdiction of the court, and to show that such notice has been lawfully served is the duty of the power seeking to take the land, and the recital of such notice in the report of the commissioners or jury of view, without other sufficient proof, will not suffice to confer jurisdiction. Adams v. San Angelo W. W. Co., 25 S. W. 165; Dallas Ry. Co. v. Day, 3 Tex. Civ. App. 353, 22 S. W. 538; Parker v. Ft. W. & D. C. Ry. Co., 84 Tex. 333, 19 S. W. 518; Bowie County v. Powell, 66 S. W. 237; Cummings v. Kendall Co., above cited; Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S. W. 1044. Such notice...