65 S.W. 389 | Tex. App. | 1901
Holt sued Rockwall County to recover damages occasioned to his premises by reason of ditches having been dug thereon by a road overseer for the purpose of draining a public road. It was alleged that the county, by order of its commissioners court made and entered in term time, directed the overseer to cut the ditches and assessed the damages to Holt's property at $15, which he, upon learning of the order and allowance, refused to accept. Demurrers. to the petition, based upon the ground that the claim for damages had not been presented to the commissioners court for allowances, were sustained, and, the plaintiff declining to amend, the suit was dismissed.
The suit was brought under article 4745 of the Revised Statutes, which provides that "whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard to the natural water flow, and with as little injury as possible t the adjacent land owner; provided, that in such cases the commissioners court shall cause the damages to such premises to be assessed and paid out of the general revenues of the county, and in case of disagreement between the commissioners court and such owner, the same may be settled by suit as in other cases." The petition charged the cutting of the ditch; the damage to Holt's property; the recognition by the county of such damages; the assessment of the damages at $15, and the refusal of Holt to accept the allowance. These facts, if true, showed a disagreement between Holt and the county as to the amount of damages to which he was entitled, and authorized the bringing of this suit. The article of the statute quoted above provided a special procedure for cases arising thereunder; and article 790, which declares the general rule that suits can not be brought on claims against a county until after the claims have been presented for allowance, and is not applicable. By article 4745, supra, the county is required to take the initiative, and assess the damages, which was done in this case. When this was done, it was manifest that Holt had the option to accept or reject the offer made by the *366 county. Having rejected it, the disagreement between the parties was complete, and further negotiations were not required as a prerequisite to bringing suit.
The judgment of the trial court is reversed and the cause remanded.
