Ralls v. Parish

• Decision Date: 16 November 1912
• Citation: Ralls v. Parish, 151 S.W. 1089 (Tex. App. 1912)
• Parties: RALLS et al. v. PARISH et al.
• Court: Texas Court of Appeals

Page 1089

151 S.W. 1089

RALLS et al. v. PARISH et al.

Court of Civil Appeals of Texas. Amarillo.

November 16, 1912.

Rehearing Denied December 14, 1912.

On motion for rehearing. Rehearing ordered, and judgment below affirmed.

For former opinion, see 149 S. W. 810.

HUFF, C. J.

At the last term of this court this case was reversed and rendered by this court. Appellee, the contestee, filed his motion for rehearing, and thereafter this court certified certain questions to the Supreme Court for its determination. On the 29th day of May, 1912, that court handed down its answers and opinion which had been certified to this court for its observation and guidance and which is reported in 147 S. W. 564. By that opinion it is left to us as an issue of fact to ascertain what constitutes the boundaries of Emma, and in doing so, as we understand the opinion, we must ascertain the intention of the voters at the time of selecting the county seat, as that intention will control. The Supreme Court, in its opinion, says: "The original town plat of Emma as it existed at the time it became the county seat of Crosby county, in 1891, did not constitute the county seat, but rather the collection of inhabited houses and the area pertaining to such houses constituted the town, and therefore the county seat. The town of Emma, as the voters knew it and as they intended it should constitute the county seat, should control." In the light of the opinion of this court rendered in this case and the facts in question certified to the Supreme Court, it would appear that the Supreme Court has eliminated the plat from consideration as the county seat of Crosby county, selected by the voters at the election in 1891. The contestants in this case assail the order of the county judge of Crosby county which declared the town of Crosbyton was selected by the voters at the election September 17, 1910. Article 1393, R. S. 1911, old article 815, provides: "The officers holding the election shall make return thereof to the officer ordering said election within ten days after the same was had, who shall then proceed to open said returns and count the same and declare the result, which shall be entered upon the records of said commissioners' court and shall also state the name and place from which the same is removed and the name and the place to which the same is removed." Until this order so made is set aside or vacated, the town therein named is the county seat. The burden is on the party or the parties assailing it to show that it does not correctly name the town for the county seat. Wallace v. Williams, 50 Tex. Civ. App. 623, 110 S. W. 785.

We hold that the burden was on the contestants in this case to show that Emma was within the radius of five miles of the center of Crosby county, and that it was the intention of the voters of 1891 to vote for such town, and that they did vote for it as located; and, unless contestants discharged that burden, it was not incumbent upon the trial court to disturb the result so announced by the order of the county judge. The contestants introduced a deed from C. A. Benedict, together with a plat of section 2, certificate 16, N. & O. B. R. R. Co. The deed is as follows: "State of Texas. C. A. Benedict of Crosby county, Texas, has laid off section 2, certificate 16, N. & O. B. R. R. Co., original grantee, Crosby county, Texas, into lots and blocks with streets and alleys as shown by the above plat, and whereas a town has been built upon said section so laid off as aforesaid to be known and called by the the name of Emma; therefore, know all men by these presents, that I, the said C. A. Benedict, for and in consideration of the fact that a town has been built upon said section of land and for the purpose of securing the inhabitants of said town in the enjoyment of its streets, alleys and public square, do hereby declare that I have and do by these presents consent to the said subdivision of said section by said plat shown into lots, blocks, streets and alleys of dimensions in feet as shown by the dimensions above given. I do hereby donate unto the said citizens of the aforesaid town the free and uninterrupted use of said streets and alleys and to be held and enjoyed by them so long as so used, otherwise to revert to me, the said C. A. Benedict, or my heirs. The southeast corner of the public square to be the starting point in surveying blocks, lots, streets and alleys. [Signed] C. A. Benedict." They also introduced testimony to show that portions of the town plat were within the five-mile radius, but the facts also show that this plat was filed on the day before the election in 1891 to remove the county seat from Estacado to Emma. The deed purports to be in consideration of "the fact that a town had been built upon said section," and to secure "the inhabitants of said town in the enjoyment of its streets, alleys," etc. And further, "I do hereby donate unto the said citizens of the aforesaid town the free and uninterrupted use of said streets, and alleys." This instrument, together with the plat, is to be treated as one instrument. The town is part of the description of the section and aids in the identification of the land.

The town built on the section is no more to be discarded than the plat of the imaginary streets and alleys, but on what part of the section was it situated in 1891? Shall this court presume, because part of the plat was within the five-mile limit, that the town or any part of it was also? We think the proof ought to furnish the trial court and this court facts to show that some portion of the town was then within the required radius. The voters doubtless knew the town as it would be open to observation. Not necessarily so with the plat. It will not answer the requirements to say the filing of the plat constituted constructive notice. This is not a question of notice, but is one of "intention" on the part of the voters at the time. Did they vote for the plat or the town as then known? On this point, as we understand the record, there is no proof on this vital issue in the case; that is, the "intention" of the voters as to the boundary of the "place." The court must resort to inference to bridge the hiatus. It occurs to us the nature of the case required better evidence. It should be stated that contestants, upon the trial of the case in the court below and in this court, urged that the certificate issued by the Land Commissioner in 1891 should control in fixing the center of the county. As we understand the facts in this case, should that certificate control, then contestants made out a prima facie case; but the Supreme Court has settled that question adversely to contestants. The trial court filed his conclusions of facts and of law, In the fourth finding of facts he finds: "The town of Crosbyton to be situated and was on the day of the election within five miles of the geographical center of Crosby county, as shown by the certificate of August 26, 1910, and that the town of Emma is not and was not at the date of the election within said five miles, but is more than five miles from the geographical center of such county, as shown by the certificate of August 26, 1910."

The trial court, after hearing the evidence, rendered his judgment, and we believe the evidence should be viewed in the light most favorable to the judgment. It has been urged by counsel that the court in his finding did not find that Emma, when first selected as the county seat, was without the five-mile radius. He must have found that Emma since 1891 up to the election in 1910 was the county seat, and that it was then being sought to be removed. We must impute to him the finding that Emma, when chosen for the county seat in 1891, was more than five miles from the center, as shown by certificate of August 26, 1910. In the order declaring Emma the county seat in 1891 it is shown by the order that 109 votes were cast to remove to Emma, 19 votes to section 1, certificate 336, and 3 votes to remain at Estacado. The evidence shows in measuring from the center of the county as ascertained by the certificate of the Land Commissioner, August 26, 1910, the five-mile limit is reached 197 varas east of the courthouse, according to the witness Orand. This witness says: "There are some houses west of the point we came out as the five-mile radius in the town of Emma." J. C. Woody testified to houses in the town of Emma and east of the courthouse, but fails to show whether the houses are within or without the five-mile radius. The deed of dedication clearly indicates there was a town on the section before the grantor executed it. If this section was platted longer than one day before the election, the evidence does not show it. There is no testimony to show that the voters intended to vote for the platted section, unless the filing of the plat the day before is such. We think there is evidence which will support the judgment of the trial court. At least, we are not prepared to say there is none.

It has been urged by appellants that from the situation of the houses the town of Emma in 1910 cannot be presumed where thus situated in 1891. This is true. The presumption will not prevail retrospectively, but the situation in 1910 was a circumstance which can be looked to for what it is worth. It does not rise to the dignity of a presumption, but it is nevertheless a fact or circumstance which may be entitled to some consideration. The fact that voters in 1891, when they cast their ballot for a section of land, said section 1, certificate 336, when they voted for a town they named Estacado or Emma, as the case might be, indicates that, if they had been voting for section 2, they probably would have so stated.

It is earnestly contended by counsel for contestants the phrase, "whereas a town has been built upon said section," in the deed from Benedict, cannot and should not be considered as testimony on the question as to whether there was a town...