Franklin County v. Huff

• Decision Date: 06 June 1906
• Citation: 95 S.W. 41
• Parties: FRANKLIN COUNTY v. HUFF.
• Court: Texas Court of Appeals

95 S.W. 41

FRANKLIN COUNTY v. HUFF.

Court of Civil Appeals of Texas.

June 6, 1906.

Rehearing Denied June 27, 1906.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

Suit by Franklin county against J. A. Huff to abate a public nuisance, consisting of the obstruction of a public road, and to restrain defendant from maintaining such obstruction. From a judgment for defendant, plaintiff appeals. Reversed, with instructions.

C. W. Stringer, for appellant. R. T. Wilkinson, for appellee.

FISHER, C. J.

Huff, by fences, obstructed a public road legally opened and established, whereupon the county brought this suit to abate same as a public nuisance, and to restrain Huff from maintaining such obstruction. The case below was tried before the court and judgment was rendered against the county. We have considered the cross-assignments of error contained in appellee's brief, and find that none are well taken. The pleadings of the plaintiff are sufficient, and so is the evidence, to support the findings of the trial court. The appellee's objections to evidence are overruled.

The findings of fact of the trial court are as follows: "(1) I find that at the February term of the commissioners' court of Franklin county, 1904, the defendant presented to said court a petition signed by 19 citizens of said county asking said court to change a portion of the public road leading from the town of Mt. Vernon, Tex., to the town of Pittsburg, in Camp county, Tex.; that the portion of said road asked to be changed or altered was about 660 yards long; and that that portion of the said road was to be discontinued and a new road to be opened up so as to connect ends of the old road so discontinued. (2) I find that said petition represented, and that the defendant represented to said court, that the route for the new road was on as good and practicable ground for a road as was the old road, and that the new road or new part of the road would not be any longer than that part of the old road discontinued, and would be on as good ground. (3) I find that the new road was, in fact, on much worse ground for a road than that of the old road; that the ground on which the new road was placed was and is impracticable for a road. (4) I find that the change in the road makes the road about 160 yards longer than it was before the change, that is, the new part of the road is about 160 yards longer than that part of the old road discontinued. (5) The court ordered that part of the old road affected by the change discontinued when the new road was established and cut out according to law; and I find that the defendant fenced up and stopped the public from using the old road before the new road was cut out and put in a condition to be used by the public. (6) I find that the change in the road was agreed to be made solely for the benefit of the defendant and that he agreed with the commissioners' court to lay out, cut out, and establish the new road on as good ground as the old road was on, and put the same in as good condition as the old road was before he fenced up the old road; and I find that the old road was on good ground, and that the new road was on bad ground. I also find that the old road was in good condition, and that the new road was and is in bad condition, and not cut out as the law requires for a second class road. (7) I find that at the August term of the commissioners' court of Franklin county there was presented to said court a petition of 30 or...