Watt v. Studer

• Decision Date: 27 November 1929
• Docket Number: (No. 3322.)
• Citation: 22 S.W.2d 709
• Parties: WATT v. STUDER et al.
• Court: Texas Court of Appeals

22 S.W.2d 709

WATT v. STUDER et al.

(No. 3322.)

Court of Civil Appeals of Texas. Amarillo.

November 27, 1929.

Appeal from District Court, Gray County; W. R. Ewing, Judge.

Suit by John F. Studer and others against B. T. Watt. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

A. A. Ledbetter, of McLean, and R. H. Templeton, of Wellington, for appellant.

W. Sherman White, of McLean, and Cook, Smith & Teed, of Pampa, for appellees.

RANDOLPH, J.

This suit was filed by the county attorney, the county judge, and county commissioners of Gray county, Tex., road precinct No. 4 of Gray county, Tex., and the highway commission of Texas, to restrain the appellant from obstructing a state highway and to require him to remove a house and other improvements from off the land situated upon a state highway. Upon hearing before the district judge of the Thirty-First judicial district, the said judge entered an order granting the injunction as prayed for, in vacation and in chambers. Appeal was taken to this court for review of such judgment or order.

The plaintiffs, in their petition for a mandatory injunction filed herein, after naming the parties and giving their official status, and after describing the land of defendant, alleged substantially:

That the commissioners above named instituted proceedings to establish a public road of the first class along the strip of land described. That a petition was filed in accordance with article 6705 of the Revised Statutes of 1925, by the requisite number of freeholders, and said property was duly and legally condemned as required by law, and the condemnation proceedings were duly approved by final judgment of the commissioners' court in all things, as required by law. That the defendant B. T. Watt, notwithstanding the fact that he had been served with notice, made no appearance or objection to the proceeding. Damages were awarded him, and were duly deposited in the office of the county treasurer, subject to his order. That said road is laid out for the purpose of establishing a state highway, and, after the proposed highway had been surveyed and agreed upon by plaintiff road precinct No. 4 and the said commissioners' court and said state highway commission and the Federal Bureau of Roads, the same was intended to be a state highway and receive aid from the Federal Bureau of Roads, in accordance with the agreement. That an attempt had been made by said parties to fix the location of said road at some other point, but the state highway commission and plaintiffs generally were enjoined from locating said road at this point first chosen, by the United States District Court at Amarillo, in response to a petition by the Chicago, Rock Island & Gulf Railway Company, and the said plaintiffs and the said Federal Bureau of Roads and the public generally agreed and concluded that the most feasible route for said highway should be along and over the property above described, and that the best interest of the public generally would be served by the locating of said road along said strip. That, by virtue of the proceedings described above, upon said highway crossing said property, the plaintiffs and the public generally acquired only an easement across said strip. That the legal title to said property, subject to said easement, still vests and remains in said defendant, as well as the title to the improvements located thereon. The petition further recites the improvements upon said land.

That thereafter written notice was given by the plaintiffs to defendant to remove said obstructions from said proposed highway so that the same might be opened as a public road in accordance with the judgment of said court, but said defendant has refused and still refuses to remove said obstructions or any of them, or to permit these plaintiffs or the public generally to cross said premises along said strip or to in any wise interfere with or remove said obstructions. That the plaintiffs have been advised by the Federal Bureau of Roads that, if said highway is not opened across said property at once, plaintiffs will be refused federal aid in the construction of said highway, which will mean a great loss to the public generally and your petitioners. Further pleading inadequacy of law, praying for a receiver, and further praying that defendant be cited at once to show cause why said injunction should not be granted as prayed for or said receiver appointed as prayed for, and that on hearing hereof such injunction be granted as above described or that said receiver be appointed with powers as above stated. Plaintiffs further pray that defendant be cited to appear and answer herein at the next term of court hereof, and that on a final hearing said injunction be made permanent.

This petition was presented to the district judge in chambers on the 13th day of July, 1929, and the hearing on same was set for the 24th of July, 1929, at Miami, Tex., and directing the clerk of said court to issue notice of such...