Tod v. Massey, 9507.

• Decision Date: 03 July 1930
• Docket Number: No. 9507.,9507.
• Citation: 30 S.W.2d 532
• Parties: TOD v. MASSEY et al.
• Court: Texas Court of Appeals

30 S.W.2d 532

TOD v. MASSEY et al.

No. 9507.

Court of Civil Appeals of Texas. Galveston.

July 3, 1930.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Mrs. Osceola E. Tod against C. D. Massey and others, composing the Commissioners' Court of Harris County. From a judgment dismissing the suit, plaintiff appeals.

Reversed and remanded.

Bryan, Colgin, Suhr & Bering, of Houston, for appellant.

Roberts, Monteith, Baring & Wilson, of Houston, for appellees.

LANE, J.

Mrs. Osceola E. Tod brought this suit in the district court of Harris county, Tex., against Norman Atkinson, county judge of Harris county, Tex., and R. H. Spencer, C. D. Massey, W. G. Sharman, and Ben Reinicke, county commissioners of said county, as parties composing the commissioners' court of said county, praying for the issuance of a temporary injunction to restrain the defendants as a commissioners' court, and each of them as members of said court, from constructing a certain proposed road or passageway over and across certain lands owned by the plaintiffs, or doing any work on such proposed road on plaintiff's land, or from in any wise opening and operating such proposed road as a public road, and from expending any funds belonging to the county of Harris for the construction, maintenance, or operation of such proposed road, and for a permanent injunction upon final hearing.

The plaintiff alleged substantially that prior to the filing of her petition for injunction, on or about the ______ day of November, 1929, the county court of law of Harris county, upon the application of said county through its commissioners' court, rendered a judgment and decree in favor of said county against plaintiff, condemning a certain strip of plaintiff's land for the opening and operating of a public road or highway leading from the corporate limits of the city of Houston to the boundary line of the county of Harris, such road to be designated as the Haden Road in Harris county, Tex.; that said court appointed S. M. Gibson, R. J. Shallcross, and A. C. Bernard as special commissioners to award such damages as they might find the plaintiff was entitled to by reason of the taking of her land.

In her verified petition, the material allegations of which are taken as true, plaintiff alleged that at no time was she given any notice that defendants contemplated, intended to, or were about to determine whether or not there was a public necessity for the proposed road, nor was she given an opportunity to be heard before the commissioners' court or to submit evidence as to the necessity for the establishment of such proposed road; that notice was not given to her as owner of the land proposed to be taken for the proposed public road in accordance with article 6709, Revised Civil Statutes of 1925; that the special commissioners appointed by the county judge awarded to plaintiff as damages the sum of $542.50 for her land proposed to be taken.

Plaintiff further alleged that she is and had been for many years a large taxpayer to the county of Harris, and the state of Texas; that in the attempt to take her land defendants were unwisely and improvidently expending the money of the county, and that unless they are restrained from so doing plaintiff as a taxpayer to the county, and other such taxpayers, will suffer unnecessary loss and damage, in that there does not exist any public necessity for the proposed road; that as a matter of fact her said land was condemned as aforesaid at the special instance and request and for the special benefit of W. D. Haden Company, and that the public has and will have no interest in or use for said proposed highway running over and across plaintiff's said lands; and that the only persons who will use same will be a few of the employees of the W. D. Haden Company. That the general public not only has no necessity therefor but will have no use therefor, and there will be no occasion for residents or citizens of this county to use or travel upon said proposed highway running through plaintiff's land aforesaid; and that said proposed highway was condemned for the special use of said W. D. Haden Company and in order to give it an outlet which will be more convenient to it than the present road which is now being utilized by said company. That at the present time there exists a winding roadway by which said W. D. Haden Company has access to its plants and its properties and that the proposed roadway or highway was in fact adopted and approved by the commissioners' court and was condemned as aforesaid in order to favor said W. D. Haden Company by giving and affording it a shorter and more direct route to its property, and that this act on the part of the commissioners' court constitutes a gross abuse of its discretion.

That said roadway proposed as aforesaid, and to construct which the property of plaintiff was condemned, while designated and constructed as a public and county road, will in fact be nothing more than a private right of way leading to the plant of W. D. Haden Company and as such will not be used by the people of the county other than by W. D. Haden Company and in all probability a very few employees of said company.

Plaintiff further alleged that unless the injunction prayed for is issued she will suffer great and irreparable damage and injury privately, and as a taxpayer. She also alleged that she appealed to the county court from the award made by the special commissioners appointed by the county judge, which court had jurisdiction to adjudicate that question only and not the right of the county to take her land for the construction of the proposed road.

The defendants by their answer challenged the jurisdiction of the district court to hear and determine the issues raised by the plaintiff's petition. They insisted that since the judge of the county court at law of Harris county had, upon a petition duly presented to him, appointed special commissioners to award damages, who had thereupon made such award, from which award the plaintiff had appealed to said county court at law, such court of law became a court of competent jurisdiction to determine all the issues raised by the plaintiff's petition for injunction, and that since said county court at law had acquired jurisdiction to determine the whole controversy growing out of the condemnation proceedings, it had exclusive jurisdiction to determine such controversy and such jurisdiction could not be ousted by the district court.

The court sustained defendants' plea to its jurisdiction and dismissed plaintiff's suit for injunction. The plaintiff, Mrs. Tod, has appealed.

The gist of appellant's contention is that since the allegations of her petition must be taken as true, it is apparent that defendants are attempting to take a part of her land for the private purposes of W. D. Haden Company by condemnation proceedings and not for the construction of a public road, and that no property of a citizen...