Moseley v. Bradford

• Decision Date: 11 November 1916
• Docket Number: (No. 8458.)
• Citation: 190 S.W. 824
• Parties: MOSELEY et al. v. BRADFORD et al.
• Court: Texas Court of Appeals

Page 824

190 S.W. 824

MOSELEY et al. v. BRADFORD et al.

(No. 8458.)

Court of Civil Appeals of Texas. Ft. Worth.

November 11, 1916.

Rehearing Denied December 16, 1916.

Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.

Suit by Margaret C. Moseley and others against J. H. Bradford and others. From an order dissolving a temporary injunction, the plaintiffs appeal. Reversed and rendered.

W. H. Penix, of Mineral Wells, Hood & Shadle, of Weatherford, and D. M. Alexander, of Ft. Worth, for appellants. J. T. Ranspot and W. F. Smith, both of Palo Pinto, for appellees.

DUNKLIN, J.

J. H. Bradford owns a survey of 160 acres of land situated in Palo Pinto county, which is wholly within and surrounded by a ranch, known as the Moseley ranch, of 3,000 acres. Mrs. Margaret C. Moseley owns a life estate in the land constituting the ranch, and the children of Mrs. Moseley and her husband, H. L. Moseley, own the fee-simple title in said ranch, subject to said life estate. On June 16, 1915, Mrs. Moseley and her husband filed this suit in the district court of Palo Pinto county against J. H. Bradford, the county judge, and other members of the commissioners' court, and the road overseer, to enjoin the opening of a public road of the second class, which had theretofore been established by said commissioners' court, extending from the home of said J. H. Bradford to a point on the Lipan public road, which had theretofore been ordered opened. At the same time they applied for and obtained a temporary writ of injunction, restraining any further action on the part of the defendant looking to the opening of the road. On June 29, 1915, the defendants filed a motion to dissolve the temporary writ, which was heard and granted on the 9th of July following. The plaintiffs gave notice of appeal from said order to this court, but they failed to take any further steps to prosecute said appeal. After such failure to prosecute the appeal, the commissioners' court ordered the road opened in compliance with their former orders, and the road was thereafter opened by the road overseer in compliance with the terms of said order. Thereafter, on October 6th, plaintiffs filed in the district court their first amended original petition, alleging that the action of the commissioners' court in opening the road was void, and asking that said court be enjoined from opening and maintaining the same, and that the fences erected to fence off the road from the balance of the Moseley ranch be removed. The case was tried without a jury, and the trial judge filed findings of fact and conclusions of law, which are as follows:

"Findings of Fact.

"The Allen Williams survey of land is owned by Mrs. Margaret C. Moseley, one of the plaintiffs herein, who has a life estate in said survey with the remainder in her children.

"(2) The J. W. F. Stone survey is owned by J. H. Bradford and is entirely surrounded by said Allen Williams survey.

"(3) J. H. Bradford has no road or outlet from his place except across the Allen Williams survey.

"(4) For years J. H. Bradford has had a gated road leading from his place to the old Lipan road, thence to his post office and trading point at Brazos, Tex. This road has been moved by plaintiffs herein at will, and the location of same has never been certain or definite since the defendant J. H. Bradford has owned and occupied the said Stone survey.

"(5) On the 14th day of April, 1915, J. H. Bradford and others posted three notices, as required by law, stating that a petition would be presented to the commissioners' court of Palo Pinto county at its May term, 1915, asking for the opening and establishment of the road in controversy.

"(6) On the 9th day of May, 1915, J. H. Bradford filed with the clerk of the commissioners' court a petition in writing signed by himself and 44 others, freeholders of road precinct No. 14, of Palo Pinto county; that the said petition stated, among other things, that it was necessary for the convenience of the petitioners and the public generally that the road therein asked for be opened, same being the road in controversy.

"(7) On the 13th day of May, 1915, the commissioners' court of Palo Pinto county acted upon said petition, and found that a necessity existed for the opening of the said road, granted said petition, and appointed a jury of view to lay out the said road.

"(8) On the 25th day of May, 1915, an order for the jury of view to view out the said road and assess the damages incident thereto was duly issued by J. W. Brock, county clerk of Palo Pinto county, Tex., directed to J. E. Riggs, F. J. Kahlbau, Tom Harrison, L. M. Blucher, J. M. Watson, jury of view theretofore appointed by the said commissioners' court of Palo Pinto county, and that said order for the jury of view was on the 27th day of May, 1915, served upon each member of the said jury of view by W. G. Abernathy, sheriff of Palo Pinto county, Tex.

"(9) Thereafter said jury of view took the oath, as required by law, and thereafter gave notice to Mrs. Margaret C. Moseley and H. L. Moseley, her husband, of the time and place at which said jury of view would meet to lay out and survey said road and to assess damages thereto; said notice was served upon the said Mrs. Margaret C. Moseley and H. L. Moseley in Parker county on the 1st day of June, 1915, by Geo. Gore, sheriff of Parker county, Tex.; said notice was given for more than five days before the time set for the meeting of the said jury of view.

"(10) On the 10th day of June, 1915, the said jury of view met at the time and place mentioned in their notice to the plaintiffs and proceeded to lay out said road in compliance with the order of the commissioners' court and to assess damages to land taken from Mrs. Margaret C. Moseley for said road at the sum of $50 and other damages incident to the opening of the same at the sum of $10; and on the 14th day of June, 1915, filed with the clerk of the commissioners' court a report of their action.

"(11) On the 15th day of June, 1915, the commissioners of Palo Pinto county acted upon said report of the said jury of view, and ordered the said road opened and established as a road of the second class, 30 feet wide, and further ordered that the sum of $100 be deposited with the county treasurer of Palo Pinto county to the order of Mrs. Margaret C. Moseley as compensation for land taken, and ordered that J. H. Wharton, overseer of road precinct No. 14, open and fence said road.

"(12) When the said jury of view met to lay out the said road and to assess damages thereto the plaintiffs, H. L. Moseley and Mrs. Margaret C. Moseley, filed with the said jury of view a claim for damages for land taken in the sum of $100, and further incidental damages claimed in the sum of $500.

"(13) Said road is located as follows: Beginning at an iron stake 200 feet of the northwest corner of the J. W. F. Stone survey; thence in a northerly direction across the Allen Williams survey 1,700 feet to a stake at the crossing of a branch; thence in a westerly direction 436½ feet to a stake in the center of a gate near the residence of T. B. Roquemore and intersecting the old Lipan road at the said point; that the said road is now open and used by the public.

"Conclusions of Law.

"Upon the whole evidence and the foregoing findings of facts, I conclude as a matter of law:

"1. The commissioners' court of Palo Pinto county had the legal right to order the said road opened, and that the said court acted within its legal authority in opening the same.

"2. The petition of J. H. Bradford was in due and legal form; the same was signed by the requisite number of freeholders, and due notice of the presentation of the same had been given.

"3. All orders passed by the commissioners' court of Palo Pinto county in reference to the opening of the said road were in due and legal form and made in conformity with law.

"4. The jury of view were legally sworn and qualified, the notices given to the plaintiffs H. L. Moseley and Mrs. Margaret C. Moseley were in legal form, and the same were given for the length of time required by law.

"5. The plaintiffs, in appearing before the said jury of view and presenting a claim for damages, waived any and all irregularities, if any had existed, in the proceedings of the court up to the said time.

"6. The commissioners' court of Palo Pinto county had jurisdiction and full power to open said road and to make any and all orders necessary to be made in the opening of the same.

"7. The district court is without jurisdiction to inquire into any of the matters in controversy in this suit further than to ascertain that the commissioners' court did not abuse the right of discretion vested in it concerning the opening of public roads.

"8. The commissioners' court had jurisdiction of the entire subject-matter involved in this suit, and the said court has not abused its discretion, and therefore the plaintiffs are not entitled to the restraining order prayed for in their petition."

Plaintiffs alleged in their petition that the road was established for the sole benefit of J. H. Bradford, and not for the benefit of the public at large, and that therefore the action of the commissioners' court in establishing the road was void because it was an abuse of the discretion vested in said court by the statutes in the matter of laying out and opening public roads. And the contention pressed most strongly upon this appeal is that the truth of those allegations of fact was established by uncontroverted proof.

It is hardly necessary to say that the power of the commissioners' court to lay out public roads did not exist except in cases of public necessity therefor, and that it did not have authority to lay out such roads for the sole purpose of benefiting Bradford only. See Vernon's Sayles' Texas Civil Statutes, arts. 6860, 6861, 6871, 6883, 6889, 6894; 15 Cyc. pp. 578, 579, 581 to 585; 10 R. C. L. §§ 22, 23, 28; 37 Cyc. 45 to 50. In Re...