Smith v. Ernest

• Decision Date: 01 May 1907
• Citation: 102 S.W. 129
• Parties: SMITH v. ERNEST.
• Court: Texas Court of Appeals

102 S.W. 129

SMITH v. ERNEST.

Court of Civil Appeals of Texas.

May 1, 1907.

Appeal from District Court, Atascosa County; E. A. Stevens, Judge.

Action by J. H. Smith against L. H. Ernest. From the judgment, plaintiff appeals. Affirmed.

John W. Preston and Jas. Raley, for appellant. Geo. M. Martin and Haltom & Bell, for appellee.

NEILL, J.

This suit was brought by the appellant against appellee to enjoin him from in any manner obstructing and closing up any part of the Pleasanton and Tobey Road. A temporary writ of injunction was issued as prayed for, and upon final hearing of the case such injunction was so modified as to restrain the defendant from closing that portion of the road mentioned in plaintiff's petition, which passes over defendant's land, until he should have fully complied with the order of the commissioner's court, authorizing him to change said road; "that is, until he (defendant) shall have procured a right of way over the lands to be traversed by the proposed change in said road and prepared it for public use in a manner acceptable to the commissioner's court of Atascosa county, and when the new road shall have been accepted by said commissioner's court said injunction shall thereupon cease to be of force and effect."

The first assignment of error is that "the court erred in refusing to make the injunction perpetual, for the record shows that the commissioner's court made no order changing the road, but attempted to delegate its power to defendant, Ernest." This assignment involves the question whether an order was made by said court changing said road. We will observe, before considering the evidence, that plaintiff alleges in his petiton: "That said defendant, on May 15, 1906, went before the commissioner's court of Atascosa county and got an order permitting him to change said road from a point where said road leaves the Pleasanton and Pearsall Road; thence, with the Pleasanton and Pearsall Road, to the west line of survey No. 1,546; thence south, with west line of said survey, to southwest corner of said survey; thence in a southwesterly direction to the Pleasanton and Tobey Road. Said change was to be made without expense to the county." It appears from the statement of facts that, "The defendant introduced an order of the commissioner's court authorizing the change in the Pleasanton and Tobey Road which plaintiff seeks to enjoin, which order recites that the change was to be made at the expense of the defendant, Ernest." Besides, the trial court, in its conclusions of fact, which were not excepted to by the appellant, found: "That on May 15, 1906, the commissioner's court of said county [Atascosa] upon the application of one freeholder in the precinct where said road lies, after investigation by said court, and by unanimous consent of all the commissioners elected, passed an order changing the course of said road." The rule is well established that, where one has failed to except to the findings of fact in the court below, he will not be heard to complain of such findings upon appeal. Insurance Co. v. Milliken, 64 Tex. 48; Drake v. Davidson, 66 S. W. 891, 28 Tex. Civ. App. 184; Buster v. Warren, 80 S. W. 1065, 35 Tex. Civ. App. 644; Jamison v. Alvarado Compress Co. (Tex. Civ. App.) 99 S. W. 1053. Therefore this finding of the trial court...