Dulaney v. Nolan County

• Decision Date: 10 June 1892
• Citation: 20 S.W. 70
• Parties: DULANEY v. NOLAN COUNTY.
• Court: Texas Supreme Court

Page 70

20 S.W. 70

DULANEY v. NOLAN COUNTY.

Supreme Court of Texas.

June 10, 1892.

Error from district court, Nolan county; WILLIAM KENEDY, Judge.

Action by N. J. Dulaney against Nolan county to recover damages sustained by the opening of a public road across his land. Defendant obtained judgment. Plaintiff brings error. Reversed.

Cowan & Fisher, for plaintiff in error. H. C. Hor, for defendant in error.

GAINES, J.

The plaintiff in error brought this suit against Nolan county to recover compensation for and damages to his lands caused by opening a public road across them. The court below adjudged that he take nothing by his suit, and this writ of error is sued out to revise that judgment.

The trial judge, before whom the case was tried without a jury, filed his conclusions of fact and law. The assignments of error complain only of the conclusions of law. The following diagram, taken from the court's conclusion, shows the situation of the road over the lands in question:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The squares on the map represent surveys of 640 acres each, known as "sections." The court found, in substance, that in May, 1886, the commissioners' court of Nolan county made an order laying off and establishing the Sweetwater and Roby road, running "to the east line of section No. 38, continuing north with the east line of surveys Nos. 35, 26, and 23 to the Fisher county line." The dotted line on the map represents the road. In February, 1888, the court appointed a jury of review, who made a report, which the court approved in May of that year. That report established the road on the section lines between 35 and 36 and between 25 and 26 along the road as already laid out, except where it left the section lines. The plaintiff was the purchaser from the state of section 36 and of the N. ½ and the S. E. ¼ of section 30. The plaintiff also holds the N. ½ of section 26 under a conveyance from one Patterson, who purchased from the state. The S. ½ of that section belongs to one Long, who gave the plaintiff verbal permission to inclose it with other lands. Sections 25 and 31 belong to the Franco-Texan Land Company, whose local agent gave plaintiff license to inclose them. The court finds he exceeded his authority in doing so. Section 35 is owned by the same company. They leased it to plaintiff in October, 1889, "for one year, with privilege of three or more years." One hundred and sixty acres in section 38 belonged to one Cowan, and it does not appear that plaintiff had any authority to inclose it. In the spring of 1887 the plaintiff inclosed for a pasture all the sections above named, except 38, of which his fence included only the 160 acres belonging to Cowan. The heavy lines on the map represent this inclosure. The only permanent water in the pasture so inclosed was on sections 25, 30, and 31. In order, therefore, to continue the use of the pasture, it was necessary that the plaintiff should construct, and he did construct, two miles of fence along the west side of the road on sections 35 and 26. This fence was worth $195. It was also necessary to construct a water tank, worth $350. The plaintiff also had an inclosed farm on the western part of section 36, the west line of the farm being coincident with the west line of that section. The establishment of the road upon the section line made it necessary to remove this fence eastward at a cost of $30. The road appropriated 3.63 acres of section 36, which the court found to be of the value of $43.56, and 1.81 acres of section 26, worth $9.07. The court also found that the road enhanced the value of plaintiff's lands $100. The court concluded as a matter of law that the plaintiff was entitled to no compensation, either for the cost of erecting the fence on the west side of the road or for the...