Parker County v. Jackson

• Decision Date: 08 November 1893
• Citation: 23 S.W. 924
• Parties: PARKER COUNTY v. JACKSON.
• Court: Texas Court of Appeals

23 S.W. 924

PARKER COUNTY v. JACKSON.

Court of Civil Appeals of Texas.

November 8, 1893.

Appeal from Parker county court; H. S. Moran, Special Judge.

Proceedings by the commissioners' court of Parker county to change a road through the land of John L. Jackson. From the judgment assessing the damages, the county appeals. Reversed.

Howard Martin, Co. Atty., and Stephens & Moseley, for appellant. G. A. McCall, for appellee.

HEAD, J.

The commissioners' court of appellant county changed a road through appellee's from one of the third to one of the second class, and this appeal is from a judgment in the county court assessing the damage caused by such change at the sum of $255.30. The trial in the county court was before a special judge agreed upon by the parties, the regular county judge being disqualified by reason of interest in the subject-matter; and appellant, in its first assignment, challenges the right of the parties to agree upon a special judge in that court, and insists that the case should have been transferred to the district court. The trial was had in January, 1892, at which time the amended judiciary article of the constitution was in force, which provides: "When the judge of the county court is disqualified in any case pending in the county court the parties interested may by consent appoint a proper person to try said case, or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law." Gen. Laws 1891, p. 201. No provision is made by the constitution, as so amended, for the transfer of a case from the county to the district court on account of the disqualification of the judge of the former. We see no necessity for legislation to put in force that part of the constitution above quoted, which authorizes the parties, in such cases, to appoint a judge by consent; and we therefore hold the proceedings in the court below, in this respect, regular.

Upon the measure of damages to which appellee would be entitled by reason of the change in the class of the road through his land, the court gave the following charge: "You will also inquire whether it was rendered necessary, in adapting the inclosed land of plaintiff to the uses and purposes for which it was useful and valuable, to build and erect any amount of fence on, or along, said second-class road, and also whether, for the purpose of adapting said premises, as changed by said road and fencing, if any, it was necessary to provide additional facilities or tanks for stock water; and, if you find it so necessary, you will then ascertain the just and reasonable cost of erecting good and sufficient fences, as above defined, and also facilities for stock water, as elements of damages to which plaintiff would be entitled." The cost of erecting this additional fencing, and of providing additional facilities for furnishing stock in the divided pasture with water, was proven with much particularity in the introduction of the evidence; and it seems clear that the jury must have understood from this charge that appellee was entitled to recover this cost as a distinct item...