Watkins v. Walker Cnty.

• Decision Date: 01 January 1857
• Citation: 18 Tex. 585
• Parties: HENRY M. WATKINS v. WALKER COUNTY
• Court: Texas Supreme Court

18 Tex. 585

HENRY M. WATKINS

v.WALKER COUNTY

Supreme Court of Texas.

1857.

The owner of land adjacent to a public highway, is entitled to compensation from the county for timber trees taken from his land by the overseer of roads to repair said highway.

Overseers of roads are the legally constituted agents of the county from which they receive their appointment, and what they do in the proper and necessary exercise of the authority conferred upon them, the county, in its corporate capacity, is responsible for.

Error from Walker. Tried below before the Hon. Peter W. Gray.

Petition as follows: Your petitioner, Henry M. Watkins, a resident of said county and state, would represent unto your honor, that the said Walker county is justly indebted to him in the sum of seven hundred and fifty dollars, for three thousand trees, or thereabouts, cut and used by Isaac Whitehead, overseer of road No. 1, in said county; and said Whitehead was duly appointed overseer of the same by the court of said county, composed of the chief justice and commissioners, on the ____ day of ____, A. D. 1855, and that he accepted and acted under said appointment; that said timber was cut and used, as aforesaid, during the said year 1855; after his, the said Whitehead's appointment, and while he was acting under said appointment. And, being so indebted, the said county of Walker promised and agreed to pay to your petitioner so much money as he reasonably deserved to have for said trees, or so much money as said trees were reasonably worth. And your petitioner avers that they were reasonably worth the sum of money aforesaid. Afterwards, to wit, on the 18th day of February, 1856, your petitioner filed a petition in the county court, held by the chief justice and commissioners of said county, annexed to which said petition was your petitioner's account for said trees, and that, on the 19th February, 1856, said court rejected said petition and account, and refused to pay the same or any part thereof; said account and every part thereof was rejected by said court; and, upon leave granted your petitioner, he withdrew his said petition and account from said court, for the purpose of instituting suit before your honor on the same. Said petition and account are herewith filed and made a part of this petition. Your petitioner would further represent that Stephen G. McClenny is the chief justice of said county, and that said county court is now in session, etc.

Amendment of petition as follows: Further complaining your petitioner would state, that after the appointment of said Whitehead, overseer as aforesaid, and after he accepted said appointment, and while he was acting under it, to wit: on the ____ day of ____, 1855, in said county of Walker, the said section of road over which he was appointed, and was acting as overseer aforesaid, became so much out of repair, and so nearly impassable in its condition as to require an unusually large quantity of trees and timber, to wit: three thousand trees and timber trees for its necessary causeways and improvements; and the trees and timber trees of your petitioner being nearer to said section of road than the trees and timber trees of any other person, and nearer also than any public land, the said Whitehead, as overseer aforesaid, and for the necessary causeway and improvements for a portion of said section of road, and without the consent of your petitioner, cut, or caused to be cut and carried away from the land of petitioner, on the day and year last aforesaid, in the county of Walker aforesaid, three thousand other trees and timber trees than those mentioned in the original petition, of great value to wit: of the average value of twenty cents per tree and timber tree, and then and there, as overseer aforesaid, converted and appropriated the same to the necessary causeway, and improvements of said section of road. He further states that the portion of said section of road, thus causewayed and improved by petitioner's trees and timber trees was not on the land of your petitioner; and further that said three thousand trees and timber trees were cut and taken from about sixty acres of petitioner's land, and which said sixty acres of land were mostly valuable for and on account of said trees and timber trees, and, before they were cut and carried away as aforesaid, were of great value to wit: of the value of seven dollars per acre; but by reason of the cutting and carrying away of said trees and timber trees, said sixty acres of land have been rendered and made of little value, to wit: of the value of fifty cents per acre; wherefore petitioner says he has sustained damages to the amount of five hundred dollars, etc.

Judgment by default. Damages assessed by jury at $20. Default set aside. Demurrer and answer filed; demurrer sustained and petition dismissed.

Leigh and Baker, for appellant, cited Dovaston v. Payne, 2 Smith L. Cas. 205; Id. Am. Notes to p. 212; 1 Rolle's Abr. 390.

A. M. Branch, for appellee. The county court appoints the overseer of the road and confers upon him no powers but those prescribed by the statute. If the overseer transcends that authority vested in him, the county is not responsible. The petition in this case does not allege that the county court ordered the trees to be taken, or that the overseer acted by the authority of the county court in taking an unusual quantity of timber. The purchaser of lands...