McIntyre v. Luker
| Decision Date | 13 May 1890 |
| Citation | 13 S.W. 1027 |
| Court | Texas Supreme Court |
| Parties | McINTYRE <I>v.</I> LUKER <I>et al.</I> |
The commissioners' court of Wilson county appointed a jury of freeholders to locate a second-class road, and "assess the damages incidental to the opening of the same." Without notice to him, the jury met, and located the road along the line of J. A. McIntyre's land, so as to appropriate about 15 feet by 912 varas of his land, for which the jury awarded him no damages. McIntyre appeared before the commissioners' court, protested against the report of the jury and its approval, and urged his claim for $100 damages. The court made an order approving the report of the jury, and directing the road to be opened. McIntyre gave notice of appeal from this order, but did not perfect the appeal. He afterwards brought this suit to restrain Luker, the overseer of the road, and the members of the commissioners' court, from opening the road, but did not sue to recover damages. A preliminary injunction was issued, which, upon trial without a jury, was dissolved, and judgment rendered that plaintiff take nothing by his suit, and pay all costs. The case is here by writ of error.
S. S. Lawhon and J. B. Polly, for plaintiff in error.
ACKER, J., (after stating the facts as above.)
The statutes providing for the establishment of public roads rest upon the right of eminent domain, and the well-established doctrine that the individual interest and will of the citizen must yield to the necessities and convenience of the public. In authorizing the appropriation of individual property for the public use, the constitution and laws have prescribed certain conditions and procedure which must be strictly observed and performed. Article 4370 of the Revised Statutes, as amended by the act of the legislature of February 5, 1884, provides that the jury of...
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