65 Tex. 468 | Tex. | 1886
record shows that notice was given to the land owners through whose lands the jury of freeholders appointed by the commissioners’ court proposed to lay out the public road, which was the subject of the injunction in this case. But one of these land owners complained of the action of the jury and the court in laying out the road, and he was present when it was so laid out by the jury, and was in attendance upon the court when their action was adopted and confirmed. We cannot, therefore, see how this particular land owner, who is the- only appellant in this cause, can make objection to the road on the ground that he had no notice of the proceedings.
The law does not positively require that the county surveyor shall accompany the jury in designating the road. The act of February 5, 1884, authorized the jury to take the county surveyor with them, no doubt, for the purpose of surveying the route of the road and making field notes of the survey, so that its course could be traced with certainty. The provision was intended for the benefit of the jury, to assist them in their labors and to enable them to make a definite description of the road in their report to the county court. The surveyor was not required to unite with them in making the report, and we see no reason why, if he refused to attend at their request, and there was actually no necessity for any survey of the route, and the road could be described by field notes without calling on the surveyor to make them, their report, if satisfactory, should not be legally adopted by the commissioners. The law prescribes heavy penalties against a juror who fails or refuses to perform the services required of him; it prescribes none against the county surveyor for failing to attend at the request of the jury. B. S., art. 4378. It provides for notice to be given to the jurors, but not to the surveyor. It pays such respect to the wishes of freeholders, who ask for the road,
It would seem unreasonable, therefore, that it should leave it within the power of the county surveyor to defeat the object of the law, the will of the citizens desiring the road, and the public good, by mere refusal to take part with the jury in marking out and designating its lines. This would be especially unreasonable in the present case, where his presence would not have" been of any service, as the route chosen for the road was already designated—the jury merely adopting as a public highway a private road already in use. The law allowing the jury to call to their assistance the services of the county surveyor, is evidently directory; a method which they should pursue, but which, if they could not, as in this particular case, the failure would not vitiate their proceedings, or render illegal or void the actions of the commissioners adopting them.
It is unnecessary to consider the second assignment of error, as it is apparent that the court below dissolved the injunction because the proceedings, by which the road was laid out and designated, were sufficiently in compliance with the statutes. The appellant was entitled to the damages suffered by him, and was pursuing the statutory methods of obtaining them. He does not complian here that they were not paid him before taking his land for public use, and hence, that does not become a question in the case.
The assignments insisted upon in this court point out no error for which the judgment should be reversed, and it is accordingly affirmed.
Affirmed.
[Opinion delivered February 12, 1886.]
