Nairn v. Bean

• Citation: 48 S.W.2d 584
• Decision Date: 21 April 1932
• Docket Number: No. 1325-5931.,1325-5931.
• Parties: NAIRN et al. v. BEAN et al.
• Court: Supreme Court of Texas

Page 584

48 S.W.2d 584

NAIRN et al. v. BEAN et al.

No. 1325-5931.

Commission of Appeals of Texas, Section B.

April 21, 1932.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Mrs. W. G. Nairn and others against Robert Bean and others. From a judgment for defendants, plaintiffs appealed to the Court of Civil Appeals, which certifies questions.

Questions answered.

Vickers & Campbell, of Lubbock, for appellants.

James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., and Vaughn Wilson, Co. Atty., and Tom Garrard, both of Lubbock, for appellees.

RYAN, J.

Mrs. W. G. Nairn and others, resident property taxpayers in that county, filed suit in the district court of Lubbock county, against the county judge and commissioners of said county, and the individuals constituting the state highway commission, its engineers and employees, as defendants, seeking an injunction to restrain defendants from changing or destroying the present location of State Highway No. 53, and that they be required to replace thereon certain highway signs which had been removed and to maintain said highway out of the state highway fund, provided by law for such purpose; furthermore, that they be restrained from condemning or attempting to condemn property of plaintiffs for any proposed change of said highway.

From the allegations of plaintiffs' petition it appears that Highway No. 53 runs through Lubbock county in a southwesterly direction, originating about Dickens, Tex., and terminating at Brownfield, Tex.

Idalou and Lubbock, in Lubbock county, are intermediate points of control for the location of said highway.

The tentative or temporary location of said highway on the ground—such location from Lubbock to Idalou being parallel with and on the south side of the Sante Fé & Panhandle Road to a point intersecting Highway No. 9, about 1.5 miles northeast of Lubbock and thence over said Highway No. 9 to the intersection with Avenue H in the city of Lubbock —was made permanent by the highway commission on January 16, 1928. Afterwards, the Federal Bureau of Roads recognized and designated same as a federal highway entitled to secure federal aid under statutes so providing.

Prior to that date certain citizens of Lubbock county urged the highway commission to route said highway to enter the city of Lubbock by Broadway, and other citizens urged that same be routed by Avenue H as above set forth. This controversy was styled "Broadway vs. Avenue H," and after a full hearing from all parties, the highway commission determined the permanent location on the ground of said highway between Idalou and Lubbock as aforesaid.

It is alleged in the petition that such determination of permanent location was on condition that a right of way, 100 feet in width, be donated and conveyed to the state of Texas by the plaintiffs and the county commissioners' court, and the road opened and graded by them, when the highway commission would maintain the same as a permanent highway out of the highway fund for that purpose.

The order of the highway commission following the hearing aforesaid, on January 16 1928, as entered of record in its minutes, is as follows:

"Re: Highway No. 53 in Lubbock County.

"Motion by Judge Ely, seconded by Mr. Johnson, that the permanent location of Highway No. 53 in Lubbock County be as recommended by the State Highway Engineer; that is, following the Santa Fe Railroad from Idalou to a point intersecting highway No. 9 about 1.5 miles north of the town of Lubbock, south of the proposed underpass under said Railroad. Motion carried."

It is further alleged in the petition that, pursuant to the proceedings and representations aforesaid, plaintiffs donated and conveyed, of their respective lands, the right of way 100 feet in width and additional lands to eliminate sharp curves, removed their fences and improvements at considerable expense; that the road was opened and graded in all things as required by the commission, after which it was accepted and its maintenance taken over by the highway commission, who caused signs to be erected thereon designating said road as State Highway No. 53; that following the action of said commission, the plaintiffs rearranged their respective properties so as to conform thereto and so they would receive the incidental benefit in the use of said road; they made additional and costly permanent improvements on their property so as to receive the use and benefit of same in connection with the use of said road; they did this on the faith of the proceedings aforesaid and on the representations that it was the permanent location of said Highway No. 53; that the highway commission and the commissioners' court of Lubbock county paid nothing to the plaintiffs for the right of way and the opening and grading of the road; they contracted and agreed with plaintiffs that for the consideration aforesaid, said road would be the permanent location of Highway No. 53 and would be maintained by the commission out of the state highway fund for that purpose.

It is further alleged in the petition that said location of Highway No. 53 is the shorter and more practical economical route between Lubbock and Idalou; that it will cause less damage to the lands of plaintiffs than any other proposed route, and at the same time it serves more people, and the traveling public are more convenienced and benefited; that the route over Broadway would extend over the Yellow-house Canyon, which is about one-half mile in width and very deep and would necessitate an expenditure of an enormous sum of money to open and grade same for the benefit of the public, and would cause material damage and injury to the property of plaintiffs; that for these reasons and the additional consideration aforesaid paid by these plaintiffs, was said Highway No. 53 located.

It is further alleged in the petition that the defendants are about to breach their aforesaid contract and agreement to the material hurt and injury of the plaintiffs in this: The defendants have removed and caused to be removed the signs "State Highway No. 53" along said highway between Lubbock and Idalou and are not maintaining said highway; they are threatening to change the location of same so as to enter Lubbock from the east over Broadway or Twelfth street, crossing the canyon aforesaid and intersecting the present location at a distance of from one to four miles of Idalou; that the members of the state highway commission have instructed and caused to be instructed their engineers, to make a new location of said Highway No. 53 between Lubbock and Idalou via Broadway and to intersect the present location of said Highway No. 53 at a point one to four miles west of Idalou, which is being done with the knowledge of their...