Schiller v. Duncan

• Decision Date: 10 October 1929
• Docket Number: (No. 9394.)
• Citation: 21 S.W.2d 571
• Parties: SCHILLER et al. v. DUNCAN, County Judge, et al.
• Court: Texas Court of Appeals

21 S.W.2d 571

SCHILLER et al. v. DUNCAN, County Judge, et al.

(No. 9394.)

Court of Civil Appeals of Texas. Galveston.

October 10, 1929.

Appeal from District Court, Austin County; M. C. Jeffrey, Judge.

Suit by Joe Schiller, Sr., and others against C. D. Duncan, County Judge, and others. From an adverse judgment, plaintiffs appeal. Affirmed.

C. G. Krueger, of Bellville, for appellants.

J. Lee Dittert and C. D. Duncan, both of Bellville, for appellees.

PLEASANTS, C. J.

Appellants, who are the owners of land in Austin county over which a public road is sought to be located, in a petition before and under consideration by the commissioners' court of Austin county, brought this suit against appellees, the county judge and members of the commissioners' court, to restrain further proceedings under the petition for the road.

The grounds upon which the injunction was asked were the failure of the petition to allege a public necessity for a road in the location designated in the petition, the claim that in fact no such necessity existed, and the failure of the petitioners to give notice of the filing of the petition as required by the statute.

Appellants' petition, in addition to stating the absence of any allegation of public necessity in the road petition, the failure to give notice of the filing of the petition, and setting out at length the facts relied on to show that no public necessity for the road exists, contains the following allegations:

"The appellants further allege that the Commissioners' Court upon said petition appointed a jury of view to lay out, mark and establish such road; that said jury of view so appointed by said Court went upon plaintiffs' lands and proceeded to view, lay out, mark and establish said road as a public road upon and across plaintiffs' lands and that these plaintiffs have good reason to believe and do believe and so charge the fact to be that said jury of view or a majority thereof have agreed to file a report that they have viewed, laid out and marked said proposed public road and recommended the opening of said road as a public road and that said jury of view or a majority thereof will file their said report with the County Clerk of Austin County, Texas, and that the Commissioners' Court of Austin County, Texas, will adopt said report of said jury of view and will appoint an overseer of said road and direct him to go upon plaintiffs' land, pull down their fences, dig ditches and drains upon their said land and appropriate their said lands so designated as a public road and as a result of such actions, these plaintiffs will suffer irreparable injury and damages.

"The plaintiffs further allege that the defendants as the Commissioners' Court of Austin County, Texas, have already indicated that it will adopt the report of said jury of view and establish said proposed road as a public road and that it will appoint an overseer and direct him to go upon plaintiffs' lands, remove plaintiffs' fences, dig ditches and drains upon plaintiffs' land and trespass thereon as aforesaid, and that plaintiffs have no adequate remedy at law by which they can prevent the same unless your Honor should grant his most gracious writ of injunction, restraining said Commissioners' Court from so doing."

It is further alleged that the defendant commissioners' court abused its discretion in considering the application for the establishment of the proposed road and in appointing a jury of view, "and that it will continue to abuse its discretion in the adoption of the report of the jury of view and the establishment of said proposed public road and that as a result of such action on the part of the defendants the plaintiffs will suffer irreparable injury."

It is further alleged that the establishment of the proposed public road would entail a large expenditure of money, and, there being no public necessity for the road, such expenditure would be a dissipation of public funds, and the equity power of the court is invoked to restrain the defendants from so spending the money of the county.

On the 10th day of April, 1929, the petition was presented to the judge of the Twenty-Second judicial district, and a temporary injunction obtained restraining the defendants from proceeding further in the matter of establishing the proposed public road.

Upon a hearing on a motion to dissolve on June 3, 1929, the court below sustained a plea in abatement presented by defendants and granted the motion to dissolve.

The defendants' plea, which was sustained by the court, attacks the jurisdiction of the court to hear and determine the question presented by plaintiffs' petition, on the ground that the commissioners' court had taken no final action upon the application for establishment of the road, and therefore plaintiffs' suit, in so far as their cause of action is based upon the abuse of discretion by the commissioners' court in establishing a public road over plaintiffs' land, was prematurely brought and should be abated. The plea is lengthy and need not be set out in full.

The judgment of the trial court recites the facts upon which it is based, and no complaint is made by appellants of these fact findings. This judgment...