Powell v. Carson County

• Decision Date: 18 June 1910
• Citation: 131 S.W. 235
• Parties: POWELL et al. v. CARSON COUNTY et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

131 S.W. 235

POWELL et al. v. CARSON COUNTY et al.^†

Court of Civil Appeals of Texas.

June 18, 1910.

Rehearing Denied October 22, 1910.

Appeal from District Court, Carson County; F. P. Greever, Judge.

Action by G. C. Powell and others against Carson County and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Lumpkin, Merrill & Lumpkin, for appellants. Hoover & Taylor, for appellees.

DUNKLIN, J.

This suit was instituted by G. C. Powell, V. M. Powell, L. J. Gillespie, A. J. Gillespie, and J. H. Gillespie against Carson county and the county commissioners and the county judge of that county to enjoin the opening of a public road across portions of three surveys of land designated as sections 35, 56, and 55. Plaintiffs' application for a temporary writ of injunction to restrain the opening of the road pending a trial of the case upon its merits was granted, but, upon final hearing, judgment was rendered dissolving the injunction and denying plaintiffs any relief, and from that judgment plaintiffs have appealed.

The trial was without the intervention of a jury, and the judge of the trial court filed the following findings of fact and conclusions of law as the basis for the judgment rendered:

"Findings of Fact.

"(1) I find that in April, 1908, George D. Biggs and seven other freeholders properly presented their petition to the commissioners' court of Carson county, Tex., to lay out the road complained of in this suit, and that the petition mentioned * * * showed that notice thereof had been properly given as required by law.

"(2) I find that the commissioners' court, by a proper order entered of record, granted said petition, and appointed J. C. Stansbury, Sid Williams, J. P. Wisdom, J. A. Berry, and F. H. Hill as a jury of view to lay out said road as the law directs; that I further find that said jury of view took the oath prescribed by law on the 14th day of September, 1908, and that they proceeded within the time provided by law to lay out and establish said road, the same being a road of the first class 40 feet wide.

"(3) I further find as matter of fact that the said road was laid out on the section lines of sections 35 and 36 and between the same (said sections being in block No. 2, Carson County, Texas) until they arrived at a point about 1,184 varas west of the southeast corner of section 35; that at said point a lake sets in containing about 150 acres of land; and that the road at said point deviated from the section line and run around said lake to the right, passing through sections 35, 55, and 56, returning to the section line at the end of the lake between sections 55 and 36, from which point it then proceeded as laid out on section lines.

"(4) I find that section 35 belonged to V. M. Powell, and the north one-half of section 56 belonged to V. M. Powell and the south one-half of said section to the defendants Gillespies, and I also find that section 55 belonged to the defendants Gillespies. I further find, however, that some time prior to the date of the laying out of this road the Gillespies had sold this land to G. C. Powell under a contract of sale, the terms of which are not disclosed by the evidence.

"(5) I further find that J. C. Stansbury was a member of the board of jury of view, and acted as foreman of such jury, and that he sent out the notices to the landowners, notifying them of the time and place at which the jury of view would meet to assess the damages. I further find that he called on L. J. Gillespie to know to whom he should send notices in order to notify as to the meeting of the jury of view to assess the damages as to sections 56 and 55, and I further find that L. J. Gillespie notified the said J. C. Stansbury that they (the Gillespies) had sold the land to G. C. Powell, and that Powell was the proper person for him to notify and the proper person to present claim for damages.

"(6) I further find that said J. C. Stansbury, acting for said jury of view, properly notified as the law directs, in writing, G. C. Powell and V. M. Powell of the time and place at which the jury of view would meet to assess the damages, if any, as to the road running through sections 35, 56, and 55.

"(7) I further find that pursuant to such notices, the jury of view met at the time and place designated in said notices in Panhandle, Carson county, Tex., for the purpose of assessing the damages aforesaid; and I further find that G. C. Powell and V. M. Powell acting through J. Sid O'Keefe, an attorney at law, their agent and attorney in fact, appeared before said jury of view at said time and place, and, in behalf of said G. C. Powell and V. M. Powell, presented written claim for damages to sections 35, 56, and 55; and I further find that said jury of view found the damages to said three sections of land without apportioning the same at $574.05. I further find that this claim was put in by the said attorney in the name of G. C. Powell and V. M. Powell, but I further find that with the knowledge of the said attorney there present the claim was allowed in the name of G. C. Powell alone.

"(8) I further find that said jury of view in due time reported to the commissioners' court of Carson county, Tex., their proceedings in writing at a proper term of said court, and that said report contained proper field notes and description of the road as viewed and laid out by said jury of view, and also presented the claims returned by landowners in writing to said court, together with the amount of their allowance to each, as prescribed by law. I further find that upon the return so made by the jury of view to the commissioners' court of said Carson county, Tex., the said commissioners' court on the 11th day of February, 1909, received and passed upon said report and approved the report except as to damages, the commissioners' court at said time entering an order reducing the damages allowed by the jury of view to G. C. Powell to $373.25; that said report and all proceedings were recorded as required by law, and said road established by proper order of the commissioners' court as laid out and recommended by the jury of view. The court further ordered that the damages allowed to the landowners be paid or the money deposited with the county treasurer of said Carson county, Tex., to their credit, as the law directs. The order further established the road as laid out by the jury of view, and ordered the proper road overseers to open and work the same.

"(9) I further find that when the said commissioners' court was passing upon this road matter on the 11th day of February, 1909, J. Sid O'Keefe, attorney, since the meeting of the jury of view had been elected, and was then acting as the county judge of Carson county, Tex., and as chairman of the commissioners' court of said county; that, when this matter came up for consideration before said commissioners' court, he thereupon vacated his seat and turned the question over entirely to the other members of the commissioners' court.

"(10) I further find that no appeal was prosecuted or attempted to be prosecuted from the action of said commissioners' court in assessing the damages to sections 35, 56, and 55 at $373.25. I further find that, after the order was passed establishing said road, Joe Rorex, clerk of the said commissioners' court of Carson county, Tex., offered to draw for G. C. Powell a county warrant for the sum of $373.25, which was refused by said Powell. I further find that at said time there was in the road and bridge fund of said Carson county, Tex., subject to the payment of this warrant about $6,000 of county funds. I further find that the said G. C. Powell refused to receive said warrant; that at all times since said date there has been on deposit of the funds of Carson county, subject to the payments of said amounts, in the hands of the county treasurer of said county sufficient money to pay said warrant, and that the same would have been paid at any time if presented. I further find that in the trial of this case the defendants tendered to the plaintiff the sum of $373.25, in cash, in payment of the damages as assessed by the commissioners' court, and that the plaintiffs refused to receive the same.

"(11) I find as a matter of fact that the field notes returned of the road as laid out through the land in controversy showed the road to be 40 feet wide, as described by the field notes, and that no lands were taken except such as were actually included within the boundaries of said 40-foot road as laid out, staked off, and established.

"Conclusions of Law.

"(1) Having entered into a contract for the sale of the lands alleged to belong to them with the plaintiff G. C. Powell, and having, through L. J. Gillespie, advised the jury of view, through J. C. Stansbury, that G. C. Powell was the proper person to notify, the Gillespies thereby waived any right which they might otherwise have had to damages by reason of laying off the road through, and establishing the road, over their lands, it appearing that G. C. Powell appeared by attorney before the jury of view and presented a written claim for damages covering such lands, and also thereby waived any right they may have otherwise had of notice of the time and place the jury of view would meet for the purpose of assessing the damages to such lands.

"(2) G. C. Powell and V. M. Powell, having appeared before the jury of view through their agent and attorney in fact, and presented a written claim for damages, and urged the same before said jury of view, could not question the notice received of the time and place the jury of view would meet to assess the damages, and the jury of view having fixed the amount of damages and passed upon the claim as presented, and having made return, as the law directs, of their findings to...