Leathers v. Craig

• Decision Date: 16 February 1921
• Docket Number: (No. 7992.)
• Citation: 228 S.W. 995
• Parties: LEATHERS v. CRAIG et al.
• Court: Texas Court of Appeals

228 S.W. 995

LEATHERS v. CRAIG et al.

(No. 7992.)

Court of Civil Appeals of Texas, Galveston.

February 16, 1921.

Appeal from District Court, Leon County; J. A. Platt, Judge.

Suit by J. F. Leathers against C. D. Craig and others. From judgment for defendants, plaintiff appeals. Reversed and remanded.

W. D. Lacey, of Normangee, B. D. Dashiell, of Jacksonville, and Gardner & Hopkins, of Palestine, for appellant.

LANE, J.

N. B. Thomason was formerly the owner of about 3,000 acres of land, a part of the Del Valle eleven-league grant in Leon county, Tex. This land lies just north of about 700 acres of land owned by appellant, J. F. Leathers. There is a public road along its northern boundary line running practically east and west and intersects a public road leading to the Centerville and Alabama Crossing road, which lies south of the land of appellant Leathers, at the northwest corner of the Thomason land. This road connecting the Centerville and Alabama Crossing road with the road first mentioned runs along the west line of the Thomason land for a short distance. There is also a narrow lane open between the Thomason land and that of appellant, Leathers, which intersects the last-mentioned road. All these roads are so connected as to lead to Centerville, the county site of Leon county, and to the Raymond road, along which people living in that neighborhood get their mail. The church, mill, and schoolhouse attended and patronized by those living within the inclosed lands of Thomason and others are situated just north of the Thomason land and on the road running north thereof. Guy's store, the nearest trading point for those living in that neighborhood, and their gin, can be easily and conveniently reached by means of the above-mentioned road, and such roads have been so used for such purposes for many years. For many years persons living on the Thomason land have traveled private roads situated thereon running to and intersecting the roads lying to the north and west of said land. In fact, the church, schoolhouse, gin, mail route, and county site above mentioned, can be more easily and conveniently reached by traveling the roads mentioned than by the proposed road hereinafter mentioned.

In the year 1919, about one year before the institution of this suit, N. B. Thomason subdivided his 3,000-acre tract between his children. He deeded his son Lee a tract bounded on the north and west by the public roads above mentioned. He deeded to his son W. A., sometimes called Wallace, a tract bounded on the north by the road running just north of the Thomason land; and he deeded to his daughter, Mrs. Rodgers, and his son Nat, each a tract of land lying south and east of the lands deeded to Lee and Wallace. After said 3,000 acres had been so subdivided, Lee and Wallace fenced their lands, cutting those residing on the lands of Rodgers and Nat Thomason off from access to the roads lying north and west of said 3,000-acre tract, except by means of private roads through the lands of Lee and Wallace. The 700 acres of land owned by appellant, Leathers, lying south of the Thomason land, is bounded on the south by the Centerville and Alabama Crossing road, which runs by Guy's store and intersects the road lying to the north of the Thomason tract.

At the May term of the commissioners' court of Leon county for 1919, there was filed with and presented to said court the following petition:

"The petition of the undersigned citizens and residents of Leon county, Tex., respectfully represents unto your honorable court, that they reside in road precincts No. 16 and 17, in Leon county, Tex., known as the Centerville and Alabama Crossing road, in commissioners' precinct No. 1, Leon county, Tex.

"That the following named petitioners reside upon the Fernando Del Valle eleven-league grant, and is so bounded by the Trinity river and the lands of divers persons as to be completely surrounded and inclosed by said lands and fences, that they have no means of ingress and egress of going to and returning from their nearest trading point, mill, gin, schoolhouse, church house and county seat. Their nearest trading is at Guy's store on a first-class public road leading from Centerville, the county seat of Leon county, Tex., to Alabama Crossing on the Trinity river, and thence to the town of Crockett, the county seat of Houston county, Tex. And their nearest church and schoolhouse is on the north line of the Fernando Del Valle eleven-league survey. That the names of your petitioners living within said inclosure are as follows, to wit:

"Bob Henry, Thomas Wallace, John Logan, George Epps, Arthur Robinson, Hubbard Lewis, E. Downie (all parties signing by mark).

"And we the undersigned freeholders resident citizens of Leon county, Tex., residing in road precinct No. 16 and 17, in commissioners' precinct No. 1, Leon county, Tex., hereby join the petition of Bob Henry, Thomas Wallace, John Logan, George Epps, Arthur Robinson, Hubbard Lewis, E. Downie, and respectfully represent:

"That it will be to the interest and convenience of your petitioners to open a third-class road beginning at what is generally known as the Egypt Colored Church and schoolhouse on the north line of the F. Del Valle eleven-league survey;

"Thence N. 55 E. with said Del Valle eleven-league north line to the northwest corner of W. A. Thomason's 707-acre survey, the same being the N. E. corner of Lee Thomason's survey, both surveys being on the F. Del Valle eleven-league grant;

"Thence south 35 east with the dividing line between said W. A. Thomason's and Lee Thomason's surveys 700;

"Thence in a southeasterly direction across said W. A. Thomason's tract 1,750 varas to the N. W. corner of Mrs. J. W. Rogers' 425.5-acre survey, same being the S. W. corner of W. A. Thomason's 111-acre survey;

"Thence S. 30 east with west line of Mrs. J. W. Rogers' 425.5-acre survey and the west line of Mrs. Maggie Thomason's 484.6-acre survey 891 varas to a point on the north line of J. F. Leathers' survey, same being Mrs. Maggie Thomason's S. W. corner;

"Thence in a southerly direction across said J. F. Leathers' survey about 640 varas to the Centerville and Alabama Crossing road, 60 varas west to Willow slough.

"Wherefore your petitioners pray your honorable court to appoint a jury of view to lay out and mark said third-class road and for an order of your honorable court to open and establish said public road as herein prayed for.

                               his
                Ed Henry. Drew × Parker. P. L. Lewis
                                mark
                

L. C. Tubb. J. E. Tubb. W. R. Cash. Joe Tubb. Lem Manning. A. B. Tubb. L. B. Tubb. Dan Smith."

This petition was sworn to by the last signers, only three of whom were freeholders. All of the first signers were tenants living on the Thomason lands, and were then living in the same houses in which they had lived before the Thomason land was subdivided.

On the 14th day of July the commissioners court, upon said petition, ordered the road opened as prayed for, and in its order made the following declaration:

"And it further appearing to the court that three freeholders qualified voters and citizens of said road precincts No. 16 and 17 reside within an enclosure containing more than 1,280 acres of land and that seven qualified voters reside within said inclosure through which the said road will pass or run, that it is necessary to open a third-class or neighborhood road through said inclosure so as to grant to the citizens residing within said inclosure ingress and egress to their nearest trading point, mills, gins, school and church houses and county seat."

A jury of view was appointed and proceeded to lay out the road as prayed for, and assessed appellant's damages at the sum of $300. The report of the jury of view was approved by the court. From this order or judgment J. F. Leathers gave notice of appeal to the county court of Leon county, and he had the right of appeal to said court at the time this suit was brought and tried.

On the 15th day of March, 1920, appellant, Leathers, filed in the district court of Leon county his petition substantially alleging that the action of the commissioners' court in opening the road was void, and asking that the members of said court, and the road overseer, be enjoined temporarily from entering upon his premises and pulling down his fence and from in any manner opening said road through and across his inclosed land, and that upon final hearing such temporary injunction be made perpetual.

On the presentation of this petition to the district judge the temporary injunction prayed for was granted.

Upon trial and final hearing in the district court by the court without a jury, the temporary injunction theretofore granted was dissolved and the permanent injunction prayed for was denied. From this action of the court, J. F. Leathers has appealed.

Upon the request of appellant the trial court filed his findings of fact and conclusions of law, among which are the following:

Facts.

"That said road was ordered opened by the commissioners' court of Leon county upon the petition of seven persons, who were tenants of J. W. Rogers and who resided within an inclosure containing more than 1,280 acres of land; that said petitioners had no means of ingress or egress going to and returning from their nearest trading point, mill, gin, schoolhouse, church house, and county seat; that a necessity existed for the opening of said road for the relief of said seven persons; and that the road ordered opened was the most practicable route that could be given the seven persons who petitioned for the right of ingress and egress from the inclosure within which they resided.

"(3) That eight of the eleven freeholders who signed the supplemental petition attached to the petition of the seven persons residing within the said inclosure were not freeholders within the precinct in which said road was located.

"(4) That plaintiff herein filed a claim for damages with the jury of...