Wilbarger County v. Hall

• Decision Date: 22 December 1932
• Docket Number: No. 1362-5934.,1362-5934.
• Citation: 55 S.W.2d 797
• Parties: WILBARGER COUNTY et al. v. HALL.
• Court: Texas Supreme Court

55 S.W.2d 797

WILBARGER COUNTY et al. v. HALL.

No. 1362-5934.

Commission of Appeals of Texas, Section B.

December 22, 1932.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Condemnation proceeding by Wilbarger County and others against R. W. Hall. To review a judgment of the Court of Civil Appeals [37 S.W.(2d) 1041], reversing a judgment and dismissing the proceeding, the plaintiffs bring error.

Affirmed.

Luther Hoffman, of Wichita Falls, and Berry, Warlick & Gossett, of Vernon (for Highway Commission), for plaintiffs in error.

Storey, Leak & Storey and J. S. Cook, all of Vernon, for defendant in error.

James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., amici curiæ.

SHORT, J.

This proceeding originated in the commissioners' court of Wilbarger county, and its apparent purpose was to take, for public use, 3.21 acres of land belonging to the defendant in error and to apply this land, so taken, to the use of the state highway commission as State Highway No. 28, commonly called Lee Highway, running from a point on the Red river in the northern part of the state westwardly to the New Mexico line, without having secured the consent of the defendant in error. The opinion of the Court of Civil Appeals, which contains a very full statement of the facts, including the pleadings of the parties, as well as a full discussion of the law of the case, is reported in 37 S.W.(2d) 1041, 1043, and we refer to that opinion for the statement of the case. Among other things, the Court of Civil Appeals finds that "the state highway commission is not a party to this suit, and it does not appear that such commission participated in the condemnation proceedings in any manner." The Court of Civil Appeals reversed the judgment of the county court and dismissed the condemnation proceedings, holding, in effect, that the condemnation proceedings were void for the reason that the manner in which the proceedings were commenced and conducted was not authorized by the law.

Of course, section 17 of the Bill of Rights authorizes the taking of a person's property and applying it for public use, provided adequate compensation has been made, or provided the person whose property is taken consents thereto; but in the absence of such consent the manner of taking a person's property and applying it to public use is prescribed by law, and this manner must be strictly followed. There were no pleadings in the record until after the proceedings had been filed in the county court of Wilbarger county. Whatever proceedings were had in the commissioners' court are left to conjecture, but it does appear that the county judge and the commissioners of Wilbarger county were the affirmative actors and that these officials had the land belonging to the defendant in error viewed and valued. It also appears that the defendant in error appeared before this jury of view and presented an itemized statement of his claim for damages, aggregating in the neighborhood of $5,000. The jury did not allow this claim in its entirety and the record does not disclose how much it did allow. When their report was made to the commissioners' court, the defendant in error appealed to the county court of Wilbarger county, and, among other things, entered into a written agreement as follows: "It is agreed that all matters in controversy are eliminated and waived, except the value of the land actually taken for the road, the damages, if any, to the land not taken, and the benefits, if any, to the land not taken." This agreement seems to have been made when the case came on for trial in the county court of Wilbarger county. Notwithstanding this agreement, the defendant in error interposed in his answer, afterwards filed many special objections to the procedure had in the case, but in view of the agreement we do not think any of the objections to the procedure were tenable, which the defendant in error had the power to waive. Of course, he could not waive any matter that went to the jurisdiction of the court over the subject-matter. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1085; Perkins v. U. S. Fid. & G. Co. (Tex. Com. App.) 299 S. W. 213; 15 C. J. p. 802, par. 101; p. 844, par. 164; 7 R. C. L. p. 1039, par. 70; USCA, title 23, Highways, chap. 1, § 13.

If the commissioners' court of Wilbarger county either had no jurisdiction of the subject-matter, or if its manner of exercising jurisdiction of the subject-matter was not strictly followed, according to the law covering such matters, then the waiver would not apply. This was a deferalized project, and was strictly a state highway location, though the state highway does not appear in the proceedings, beyond the fact that the land taken was used for state highway purposes exclusively. There is some suggestion in the record that the land was sought to be taken under article 6705 of the Revised Statutes of 1925, but it affirmatively appears that the petition was not signed by eight freeholders and that the twenty days' notice was not given as required by the provisions of that article. This situation was discussed by Judge Phillips in the case of Haverbekken v. Hale, County Judge, 109 Tex. 106, 204 S. W. 1162, and was also discussed by the writer in the case of Robison v. Whaley Farm Corporation, 120 Tex. 633, 40 S.W.(2d) 52, wherein it was concluded that where it appeared that the provisions of this article were not complied with, the land sought to be taken thereby was illegally taken, and the whole proceedings were void. In the case of Robison v. Whaley Farm Corporation, supra, we expressly held that the commissioners' court had authority of its own motion to condemn private property for road purposes for the public, though the facts, in that case, are altogether different from the facts in this case, in that the land sought to be taken was for county road purposes, and not for state highway purposes.

The 35th Legislature (Acts 1917, c. 190) attempted to set up a complete system of state highways, and article 6673 of the Revised Statutes of 1925, together with the amendments hereinafter mentioned, authorized the state highway commission to take over state highways. Article 6674b provides that: "All highways in this State included in the plan providing a system of State Highways as prepared by the State Highway Engineer in accordance with Section 11, of Chapter 190 of the General Laws of the Regular Session of the Thirty-fifth Legislature are hereby designated as the `State Highway System.'" Article 6674d, among other things, gives exclusive control to the state highway commission of state highways where these highways are constructed in part by the use of federal funds, as this seems to have been.

In Robbins v. Limestone County, 114 Tex. 345, 268 S. W. 915, the Supreme Court, speaking through Judge Pierson, in effect held, among other things, that the act of the state in placing public roads within a county and road district, under control and management of the state highway department, though roads were constructed by funds raised by local taxation and by issuance of bonds, which were still outstanding, was not a taking of county or road district property without just compensation or without due process of law, and the same case held that the Acts of the 38th Legislature (Acts 1923, c. 75) authorized the state highway commission to take over the various highways and that this act was not violative of article 5, § 18, of the Constitution, delegating to county commissioners' courts jurisdiction over all "county business," as conferred by the Constitution and law. In other words, the Supreme Court has held that the state highway system, generally speaking, as a system, is in all respects in accordance with the provisions of the Constitution, and the state highway system, as designated in title 116, chap. 1, R. S. 1925 (article 6663 et seq.), and the amendments thereto, hereinafter mentioned, notwithstanding article 5, § 18, of the Constitution, delegates to county commissioners' courts jurisdiction over all "county business," in effect holding that the supervision of the highways was not included within the phrase "county business."

We gather from the statement of facts that the defendant in error's land was sought to be taken in the spring of 1928, though the proceedings were filed in the county court on the 27th day of February, 1930. This fact becomes material by reason of what we shall say with reference to article 6674n, as enacted by the 39th Legislature in 1925. This particular article, in effect, gave to the highway commission the right to condemn private property for road purposes, and sets up the machinery of the commissioners' court as its agent to be used in condemnation proceedings. Up to that time it...