60 S.W. 757 | Tex. Crim. App. | 1901
Lead Opinion
Appellant was convicted of obstructing a public road. This road, known as the "Anson and Roby Road," was laid out in 1883 by order of the commissioners court, and worked since 1884 as a public road. The road ran across what is known as the "Harrison County School Land," and at the time of laying out the road belonged to that county. The order establishing the road failed to show that Harrison County had been allowed or paid damages for the land taken, or had appeared before the jury of review, or had consented that the land should be so taken. The road was worked until 1889, when, at a point one mile inside the boundary of said Harrison County land, a deflection was made in said road from where it originally ran. From that point the new road made by the deflection was worked as a part of the public road. It thus continued until October, 1898, when Coats, who had in September previous leased this land, had appellant and others to inclose it, and place a gate across the road at the point where it entered said land. Several contentions are made, the principal of which is that this is not a public road, within the contemplation of law. We do not agree with this. The fact that the order of court establishing the road failed to recite that Harrison County had been notified of the laying out of the road, and had not been tendered damages by way of compensation for the land taken, does not alter this view, so far as appellant is concerned. He had no interest in the question of damages incident to taking the land for public use, and therefore could not set it up in defense of this prosecution. At the time of his lease the road was on the ground, and had been for practically fifteen years. He leased the land with this incumbrance upon it, and, so far as he is concerned, it is wholly immaterial whether or not Harrison County had been paid for the land. Dodson v. State, (Texas Crim. App.), 49 S.W. Rep., 78. But, had he been the owner, under the record before us he could not obstruct the road, because damages had not been originally allowed. As was said in Crouch v. State, 39 Texas Criminal Reports, 148: "After the road was established, although no damages were allowed him by the reviewers or *437 by the commissioners court, he could not disregard their order, although the Constitution provides that no citizen's land shall be taken by the State for public use without adequate compensation. He was entitled to compensation, but he should have procured his rights before the courts. The order establishing the road was obligatory upon him. He could not disregard it, and his obstructing by fastening the gate with wire was an unlawful act on his part. We further hold that the fact of his fastening up said gate after he knew it had been used as a public road of the third class was, under the circumstances, willful, and the proof offered by him that he had the advice of his attorneys to the effect that the order was void would not avail him as tending to show his act was not willfully done." He took the land as he found it, incumbered with the road. It did not interfere with any right he had in the land, for it was placed there before he obtained possession. His remedy, if any, was at the hands of the courts.
It is also contended the road was not a public one by reason of the change made. If in fact the road was changed from the point of entrance into said land in 1889, it was utterly disregarded both by the commissioners court and by the road overseers in working the road, for it is shown by the evidence that the road was worked as originally laid out from Anson to a point one mile inside said land; and the proof is without contradiction that this road was worked from 1884 or 1885 to the time of its obstruction, in October, 1898, that hands were regularly apportioned to it, and the road was recognized by the commissioners court as well as the overseers in working it, and the road at the point of obstruction was traveled during the entire time.
Appellant contends because he had taken advice of counsel to the effect that this road was not a legal one, exonerates him from the charge of willfulness. This question was decided adversely to his contention in Crouch's case, supra. The other contentions urged by appellant are dependent upon those discussed above, and it is unnecessary to review them. The judgment is affirmed.
Affirmed.
Dissenting Opinion
While I concur with the majority of the court in affirming the judgment in this case, yet I do not agree with some of the propositions asserted in the opinion. I do not believe the land of a citizen can be taken for road purposes without due process of law, and I further hold that unless, in condemning land for a public road, the person whose land is condemned has had a day in court, he and those holding under him are authorized to peaceably resume possession of land so illegally condemned for road purposes, and to remove any obstruction therefrom. Nor does it occur to me that the authorities cited support the views expressed in the opinion. In Dodson v. State (Texas Criminal Appeals), 49 Southwestern Reporter, 78, it appears that the party had a prescriptive *438
right, and in such case no condemnation proceedings were necessary. In Crouch v. State, 39 Texas Criminal Reports, 148, condemnation proceedings were instituted. Appellant, Crouch, appeared in court. His land was condemned, but no damages were awarded. In that case the court had jurisdiction. Appellant had his day in court, and had his remedy on the question of damages. If he was dissatisfied with the failure to allow him damages, he had his right of appeal. Besides this remedy, he had the right to enjoin the same or sue the county for damages, as was said in that case. I can not think that said case is authority for the proposition that, where the owner had no notice of the condemnatory proceedings, and did not appear in court, he would be bound by the order condemning his land. As to him the jurisdiction of the court did not attach, and he could disregard the order of the court. The Constitution (article 1, section 17) guarantees that no person's property shall be taken or appropriated to public use without adequate compensation being made, etc. And our statute (articles 4670 to 4715, inclusive) prescribes the mode by which the land of a citizen may be taken for public road purposes, and this mode must be pursued. At least, before this can be done, the jurisdiction of the court must attach. This view is in harmony with the decisions of our Supreme Court on the subject, the decisions holding that, in order to legally condemn land for a public road, the owners or their agents must be notified in accordance with the statute. This is jurisdictional. Evans v. Land Co.,