290 S.W. 573 | Tex. App. | 1926
The trial which resulted in the judgment *575 here appealed from was before the court. Said judgment was that appellant take nothing by his suit, and such judgment is here presented for review.
Appellant by his ninth proposition contends that the field notes of the land condemned by Bosque county do not coincide with the field notes of the road actually claimed by said county and used by the traveling public, and that for such reason the condemnation proceedings were null and void, and were not available to appellees as a defense, and that he should have had judgment for the entire strip of land sued for herein. The evidence discloses that the road in controversy ran for a considerable part of its length in Bosque county on unfenced lands; that said road as traveled by the public varied slightly from the road laid out by the jury of view in one or two places; that said place or places were in the brakes of Neil creek; that such deviation was trivial both in width and in length. The gist of appellant's claim is that such trivial deviation at such point or points avoided the whole condemnation proceedings, and entitled him to recover as though no such proceedings had been had. We do not think so and overrule said contention. We do not understand appellant to contend that either his pleadings or his evidence so described the land covered by such deviation as to enable the court to award him a recovery thereof as distinguished from the land actually condemned. Neither do we understand him to present the failure of the court to render such judgment as ground for reversal.
Appellant by his eleventh proposition contends that the whole statutory procedure prescribed by articles 6875 to 6883, inclusive, of the Revised Statutes of 1911, for establishing and opening public roads by petition, is in conflict with the provisions of the Fourteenth Amendment of the Constitution of the United States, and with the provisions of section
"There is nothing in the law to guide or to limit the action of the signers of the petition in selecting property to be assessed. Subject to the vote of a district of their own choice, the petitioners' designation is absolute. The commissioners' court has no power to modify or deny; it is bound to grant the petition."
The articles of our statutes under consideration do not in terms at least require the commissioners' court to appoint a jury of view on every petition presented. If the court does appoint a jury of view, after such jury has discharged its duties and filed its report, said articles contemplate a consideration of such report by the court, and the approval or rejection thereof as it may deem to the best interest of the public. If in the judgment of the court such road is of sufficient importance to justify the opening thereof, it may revise the damages allowed by the jury of view, pay or secure the payment of the same in the manner prescribed, and order the road opened. In all these matters the action of said court is not merely ministerial, as in the creation of a road district, but involves the exercise of sound judicial discretion within the exclusive jurisdiction conferred upon said court by the Constitution and laws of this state. Haverbekken v. Coryell County,
The judgment of the trial court is affirmed.
The question of the right of a party to file an amended motion for rehearing was before this court at a former term in the case of Eubank v. Jackson. In that case leave to file was properly sought by a formal motion, and service of said motion duly had on the adverse party. Upon consideration of that motion we held in an unpublished memorandum opinion that it was within the discretion of this court, upon a sufficient showing, to permit an amended motion for rehearing to be filed in lieu of the original, but that such showing had not been made in that case. See, in this connection, H. T. C. R. Co. v. Davis (Tex.Civ.App.)
This case has been under submission in this court since December 22, 1920. The reason for the delay in disposing of it is the fact that we were awaiting the decision of the Supreme Court of two questions certified to that court by this court March 16, 1921. The questions referred to have been answered by the Supreme Court, in an opinion prepared by Presiding Judge Gallagher, of Section A of the Commission of Appeals and adopted by the Supreme Court. That opinion will be found reported in
The plaintiff, In his petition, made a direct attack upon the action of the commissioners' court in establishing the road referred to in the petition, and, in addition to the objections stated in the opinion of Judge Gallagher, he charged that the applicants who sought to have the road so established failed to post the notices required by statute, in order to confer jurisdiction upon the commissioners' court. Upon that issue there was a conflict in the testimony, and this court reached the conclusion that, on account of such conflict, the trial court committed error in directing a verdict for the defendants, but, inasmuch as a decision of either of the questions certified to the Supreme Court in favor of appellant would have been decisive of the entire case, we deemed it proper to certify those questions to the Supreme Court before entering a final judgment in this court.
The questions referred to have been decided against appellant, and through inadvertence, on a recent date, this court affirmed the judgment of the trial court. That action of this court is now set aside, and the judgment of the trial court will be reversed and remanded.
The notice required by the statute concerning the application for opening a road is jurisdictional, and, if such notice was not given, the commissioners' court had no authority to appoint a jury of view and establish the road. That question was directly involved in Haverbekken v. Hale,
Appellant's brief presents some other questions, all of which have been duly considered, and are decided against him, but, on account of the error referred to, the judgment is reversed and the cause remanded.
*769Reversed and remanded.