Maher v. Lasater

• Court: Texas Supreme Court
• Writing for the Court: CALVERT
• Citation: Maher v. Lasater, 354 S.W.2d 923, 163 Tex. 356 (Tex. 1962)
• Decision Date: 21 February 1962
• Docket Number: No. A-8631,A-8631
• Parties: John F. MAHER et al., Petitioners, v. Garland M. LASATER et al., Respondents.

Page 923

354 S.W.2d 923

163 Tex. 356

John F. MAHER et al., Petitioners, v. Garland M. LASATER et al., Respondents.

No. A-8631.

Supreme Court of Texas.

Feb. 21, 1962.

Rehearing Denied April 4, 1962.

Lloyd, Lloyd & Dean, Alice, for petitioners.

Butler, Binion, Rice & Cook, Houston, Markel Heath, Falfurrias, R. H. Singleton Houston, Harold E. Vittitoe, Falfurrias, for respondents.

CALVERT, Chief Justice.

Suit was by John F. Maher and others to set aside an order of the Commissioners Court of Brooks County declaring a private road across their land to be a public highway. The trial court granted the relief sought. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that the plaintiffs take nothing. 348 S.W.2d 671.

In declaring the road to be a public highway, the Commissioners Court acted under apparent authority conferred by Article 6711, Vernon's Annotated Texas Civil Statutes. The pertinent provisions of the statute are set out at length in the opinion of the Court of Civil Appeals, 348 S.W.2d 675, and need not be repeated here. As the statute now reads, and as it read at the time the order under attack was entered, a commissioners court is authorized to declare and open a public highway, at public expense, across lands of nonconsenting owners, upon application and showing that one or more landowners wish, but do not have, a means of access to their land or premises connecting with the county public road system. Petitioners assert that the statute is unconstitutional in so far as it authorizes a taking of their property in the factual situation before us.

The Commissioners Court's order was entered pursuant to application made by Garland M. Lasater. Lasater and petitioners had been tenants in common of lands acquired under the will of Mary M. Lasater. A plat of the lands is reproduced in the opinion of the Court of Civil Appeals in Lasater v. Maher, 330 S.W.2d 481, 482. The lands were partitioned by judgment of the District Court of Brooks County in 1956. Section 331 was awarded to Lasater. The section is isolated from public roads by a salt lake on the North, privately owned land on the East and South, and land awarded to petitioners on the West. In the partition proceeding Lasater protested the report of the commissioners in partition because it did not award him an easement for an outlet by necessity across petitioners' land to a public highway bordering such land on the West. The matter was contested and Lasater's claim to the easement as a way of necessity was denied by the trial court's judgment. He did not appeal. Thereafter, he filed suit to establish a right to an easement across petitioners land as a road by necessity. He lost in the suit, upon a holding by the Court of Civil Appeals that the issue was res judicata. Lasater v. Maher, Tex.Civ.App., 330 S.W.2d 481, no writ history.

The roadway which the Commissioners Court's order establishes as a public highway is two and one-half miles in length. Its western terminus is at its intersection with the public highway bordering petitioner's land on the West and its eastern terminus is at the West line of Section 331. It dead-ends at that point. It does not serve as a means of access to any other land. There are no other residents along its course.

Lasater does not live on Section 331, and neither does anyone else. The land is grazing or pasture land and only about 60 of the 640 acres could be cultivated. The only improvements on the section are a windmill and some pens.

Section 17 of Article 1 of the Constitution of Texas, Vernon's Ann.St., provides that 'No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person; * * *.' That provision not only requires the payment of adequate compensation for property taken for public use, it prohibits the taking of property for private use. Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941, 949; Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 833. The provision operates as a limitation on the power of the Legislature as well as a limitation on the power of governmental agencies and public and private corporations. McInnis v. Brown County Water Imp. Dist., Tex.Civ.App., 41 S.W.2d 741, 744, writ refused. The Legislature may not authorize that which the Constitution prohibits.

Prior to amendment by the Legislature in 1953, Article 6711 authorized Commissioners Courts to declare a roadway to be a public highway only if they deemed 'the road of sufficient public importance.' As so written the statute conditioned the taking of property upon a finding that it would be dedicated to a public use. By Acts 53rd Leg., p. 1054, ch. 438, the requirement for a finding that the road was of public importance was eliminated, and Commissioners Courts are now authorized to declare a private roadway to be a public highway if applicants therefor wish it to be done and 'have no means of access to their lands and premises.' In so far as the amendment seeks to authorize the taking of private property for private use, it is unconstitutional and void.

Lasater argues that by the amendment the Legislature has declared that a public purpose is served when land is taken to provide a roadway for a landowner who has no means of access to his land. It may have done so by implication. It certainly has not done so expressly. In any event, a mere declaration by the Legislature cannot change a private use or private purpose into a public use or public purpose. Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503, 505; Texas Turnpike Co. v. Dallas County, 153 Tex. 474, 271 S.W.2d 400, 402. While a legislative declaration in this and kindred fields will be given great weight by the courts, the ultimate...