Huggins v. Hurt

• Decision Date: 14 April 1900
• Citation: 56 S.W. 944
• Parties: HUGGINS v. HURT, Judge, et al.
• Court: Texas Court of Appeals

Page 944

56 S.W. 944

HUGGINS v. HURT, Judge, et al.

Court of Civil Appeals of Texas.

April 14, 1900.

Appeal from district court, Clay county; A. H. Carrigan, Judge.

Action by J. L. Huggins against E. S. Hurt, as county judge, and others, to enjoin the opening of a public road, or for damages if an injunction should be denied. A demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

A. K. Swan, for appellant. W. T. Allen, for appellees.

CONNER, C. J.

On December 17, 1898, appellant filed in the district court of Clay county his petition in an alternative form: (1) To enjoin the opening of a public road over and across his land, which road had already been ordered to be laid out and opened; and (2) for damages to his lands adjacent and contiguous to said road, in the event said injunction should be refused,—and praying for general relief. The suit was against E. S. Hurt, county judge, and the four commissioners, as the commissioners' court, and the other defendant Flowers, as road overseer, and in effect against Clay county. A general demurrer to the petition was sustained, and, appellant declining to amend, his suit was dismissed, to which action of the court error is assigned. It appears from the averments of the petition that the commissioners' court of Clay county, on the petition of Ed Wright and others, ordered a public road of the first class to be surveyed and laid out between specified points and extending over appellant's land; that a jury of view was appointed, before which appellant appeared, after due notice, and claimed the damages herein sought, amounting to $2,434; that said jury allowed appellant but $10 per acre for the 12 acres of land actually taken, refusing to consider other incidental damages claimed; that the report of the jury of view, including said assessment of damages in his favor, was approved by the commissioners' court of Clay county, and said road established, notwithstanding appellant appeared before it in person and by attorney, and urged objections thereto, as well as to the insufficiency of the damages awarded,—it being charged that said commissioners' court also refused to consider any of the damages claimed by appellant save the value of the land actually taken. It was also alleged that of all the persons who signed said petition upon which the court acted "there was not exceeding five persons who are and were freeholders living or residing in any road precinct or precincts in which or through which said road is sought to be established as required by law."

The petition set out at length the damages claimed, and it is first insisted that the district court alone had jurisdiction thereof. We think it must be held that appellant's remedy for the alleged insufficiency of the damages awarded him was by an appeal from the judgment of the commissioners' court to the county court. Rev. St. art. 4693. It is true that the constitution, in conferring appellate jurisdiction on the county courts in general terms, would seem to have limited it to cases where the amount in controversy is less than the damages claimed herein; but the assessment of damages, as in this case, involved in actions in the nature of condemnation proceedings, seems to be such special proceeding as that, under the terms of the constitution, the county court may, on appeal from the commissioners' court, hear and determine the issues pertaining thereto, irrespective of the amount involved, as has been expressly decided several times. Taylor v. Travis Co., 77 Tex. 333, 14 S. W. 137; Miller v. Wilbarger Co. (...