Doughty v. DeFee, 5201.

• Decision Date: 19 May 1941
• Docket Number: No. 5201.,5201.
• Citation: 152 S.W.2d 404
• Parties: DOUGHTY v. DeFEE, County Judge, et al.
• Court: Texas Court of Appeals

152 S.W.2d 404

DOUGHTY v. DeFEE, County Judge, et al.

No. 5201.

Court of Civil Appeals of Texas. Amarillo.

May 19, 1941.

Rehearing Denied June 16, 1941.

Appeal from District Court, Hartley County; Reese Tatum, Judge.

Injunction suit by J. D. Doughty against R. A. DeFee, County Judge, and others. From an adverse judgment, plaintiff appeals.

Affirmed.

McCall & McCall, of Weatherford, for appellant.

King Fike and Tatum & Tatum, all of Dalhart, and Wm. Q. Boyce, of Amarillo, for appellees.

FOLLEY, Justice.

This suit was instituted by the appellant, J. D. Doughty, against the appellees, R. A. DeFee as county judge of such county and the four county commissioners and Hartley County, to enjoin the appellees from opening a county road and to set aside orders made by the commissioners' court attempting to establish the road as a first class road across appellant's land.

The appellant is the owner of all of Sections 254, 255 and almost all of 292 in Block 44, H. & T. C. Ry. Co. Survey in Hartley County. Sections 254 and 255 are contiguous to each other, 254 being west of 255. They are each adjacent on the south to a paved highway leading from Dumas to Hartley, Texas. Immediately north and adjacent to Section 255 is Section 292. The latter section is owned by the appellant except for a narrow strip on the west side which is claimed by limitation by R. A. DeFee, County Judge of Hartley County, who is the owner of Section 293 which is immediately west of appellant's land in Section 292 and north of appellant's land in Section 254. Sections 296 and 297 in Block 44 are immediately north and adjacent to Sections 293 and 292, respectively.

On July 16, 1938, Asa Willis and eight others filed a petition with the county commissioners for the opening of a road beginning at a point in the Hartley-Dumas highway at the southeast corner of Section 254 and the southwest corner of Section 255 and extending north between various sections for a distance of seven miles at which point the proposed road would connect with what is known as the Exum road. A jury of view was duly appointed and made its report on August 31, 1938, recommending that the road as proposed be not established, and further recommending that a road one mile east would be of service to more people and less expensive. The jury of view allowed no damages. The commissioners' court thereafter on September 12, 1938, passed an order attempting to establish the proposed road and accepting the report of the jury of view except as to the recommendation seeking to relocate the road, and also allowing the appellant no damages.

On December 6, 1938, the appellant filed his original petition for injunction and for cancellation of the order of September 12, 1938. A temporary writ of injunction was issued and the cause was set for trial on April 10, 1939. On the latter date the commissioners' court passed another order purporting to amend its order of September 12th and allowed the appellant $159 as damages. Upon such order being passed the cause in the district court was continued.

On the same date, after the cause was continued the commissioners' court upon its own motion passed a new order establishing the road for approximately two miles beginning at a point on the Dumas highway at the southeast corner of Section 254 and the southwest corner of Section 255 and running north two miles to the southeast corner of Section 296 and the southwest corner of Section 297. Such order recited that the north five miles of the originally proposed road had been opened by the respective property owners; that their fences had been set back, the road opened and graded and used by the public as a public highway; that the appellant had declined and refused to permit the road opened across his lands; that a necessity existed for the opening of the south two miles of the proposed road and such road was ordered opened; and that C. H. Farmer, E. J. Bryant, Roy Brown, Joe Clifton and Burt Jarrett be appointed a jury of view to assess the damages and in connection with a public surveyor, if deemed necessary, to lay out, survey and describe the road to the greatest advantage to the public. Thereafter on May 8, 1939, the commissioners' court passed another order reciting that the above named five men had been theretofore appointed as a jury of view to lay out the proposed road and assess the damages; that it appeared they had not completed their duties; and that they were reappointed as such jury of view and continued over to the next regular term of the commissioners' court and ordered to view and lay out the proposed road, assess the damages and make a report to the June, 1939, Term of the commissioners' court. In this order the five men reappointed as a jury of view were declared to be "duly qualified persons". The testimony shows that at least two separate views of the road were made by members of the jury of view. The exact number present at the first view is not disclosed by the evidence. E. J. Bryant, one of the jurors, testified that some time after his appointment and before June 3, 1939, when their final report was signed, he, along with some other members of the jury, went over the proposed route and viewed the road. The evidence further reveals, however, that on June 3, 1939, all of the jury of view except Bryant went over the proposed route and viewed the road after which they met on the same day with Bryant at a schoolhouse near the road where all five members participated in the proceedings when the final route was adopted and the damages assessed. On June 12, 1939, their report signed by all five members of the jury was filed with the commissioners' court. This report designated the route of the road, recommended its establishment and awarded the appellant damages in the sum of $178.80 and R. A. DeFee damages in the sum of $77.30. On the same day this report was filed, the commissioners' court entered its order approving the report and ordered the road opened according to the field notes filed with the report.

On September 19, 1939, the appellant filed his first amended petition in the instant cause, and thereafter a supplemental petition, in which he attacked all the proceedings of the commissioners' court and the jury of view for various alleged irregularities as shall hereinafter appear.

The appellees filed a plea in abatement and an amended answer in general affirming the validity of the last proceedings of the commissioners' court and admitting the invalidity of the former proceedings.

The trial was before the court without a jury. The court rendered judgment perpetuating the injunction in so far as the orders of the commissioners' court of September 12, 1938, were concerned, but decreed that the appellant was not entitled to injunctive or other relief relative to the order of April 10, 1939, and the proceedings thereunder, wherein the commissioners' court upon its own motion ordered the south two miles of the road opened. The effect of the judgment was the denial of relief to the appellant against the opening of the road, and from such judgment the appellant prosecutes this appeal.

The appellant challenges the establishment of the road on the theory that J. G. Clifton and Burt Jarrett, two members of the jury of view appointed on April 10, 1939, and reappointed on May 8, 1939, were not freeholders of Hartley County as required by article 6706 of Vernon's Annotated Civil Statutes. In the first place, we think it was not conclusively shown that these two jurors were not freeholders within the meaning of the statute. 27 C.J. 896. It is true that each of them testified that he owned no land in Hartley County, but the testimony on this question did not end there. Clifton also testified that he was a member of the Consumers Fuel Association of Hartley, Texas, and that such association owned certain real estate in the county. Jarrett also testified that he owned an interest in the Farmers Supply Company of Hartley, and from his other testimony a very strong inference prevails that such company owned the building and lot where it did business in the county. Moreover, as above stated, the commissioners' court by its order of May 8, 1939, certified that all five members of the jury of view were duly qualified to serve and the appointment of such jurors was in no manner contested before that tribunal. In addition to this, the record shows that all members of the jury of view participated in the final decision of such group and signed the report as required by the statute which by its terms permitted a majority of them to act. Under all these circumstances we think the assignment is without merit. Lawrence et al. v. Gordon et al., Tex.Civ.App., 209 S.W. 702, writ refused; Huggins v. Hurt, Judge, et al., 23 Tex.Civ.App. 404, 56 S.W. 944, writ denied; Vogt v. Bexar County et al., 16 Tex.Civ.App. 567, 42 S.W. 127, writ denied, 91 Tex. 285, 43 S.W. 14; Middleton v. Presidio County et al., Tex.Civ. App., 138 S.W. 812, writ denied.

In connection with the foregoing complaint, the appellant attacks the report of the jury of view and the order based thereon because of the alleged irregularity of the administering of the statutory oath to C. H. Farmer, another member of the jury of view. The appellant asserts that the oath was administered to such juror by Frank M. Tatum, specially hired counsel of the appellees. It is true that Farmer was sworn by Mr. Tatum but there was some testimony indicating that he was later sworn by another, and the report of the jury of view recites that the jurors were sworn according to law. But granting that he was sworn only by counsel for appellees we think this fact would not within itself void the acts of such juror nor of the jury of view upon which he served. The act of administering the statutory oath to this juror was purely ministerial and not quasi judicial. The rigid rule which is applied to oaths in criminal proceedings has not been extended to...