43 S.W.2d 974 | Tex. App. | 1931
On Appellant’s Second Motion for Rehearing.
Tbe commissioners’ court of Willacy county undertook to lay out a public road across and condemn lands owned by Mrs. S. Y. Kin-ser and W. H. Kudor, nonresidents of tbe county, and others. Tbe petition for tbe road was filed with tbe commissioners; tbe jury of view was appointed; notice was given; a bearing was bad by tbe jurors.
It appears that three-eighths and three-fourths of an acre of tbe lands of Kudor and Mrs. Kinser, respectively, were taken outright for tbe public use. But tbe jury of view found that tbe lands of each were to be so •greatly benefited by tbe construction of tbe new road that none of the landowners were damaged, and no compensation was allowed for tbe lands actually taken.
The jury’s award was filed and approved by tbe commissioners’ court, which allowed damages to tbe owners in the sum of $1 each. Tbe landowners filed objections to this award, but did not appeal therefrom, as in cases tried in justice courts, as provided by statute. Article 6710, R. S. 1925. Subsequently, however, they brought this direct suit in tbe county court against tbe county for trespass, and recovered judgment for $125 in favor of Kudor and $75 in favor of Mrs. Kinser, which tbe jury found to be tbe market value of tbe lands actually taken from them by tbe county. The latter has appealed.
It is apparent that appellees have failed to pursue either of several remedies afforded them by law to protect their constitutional right to compensation for the land taken by appellant for public purposes. First, appel-lees failed to file a statement of their claim for damages, as required in article 6710, R. S. 1925, in which it is provided that, at the hearing by the jury of view, after notice thereof, the landowner “may, at the time stated in such notice, or previously thereto, but not in any event thereafter, present to the jury a written statement of the damages claimed by him, incidental to the opening of such road.” Second, they did not appeal from the award of the commissioners’ court in confirmation of the report of the jury of view, as provided in said article 6710. Third, they did not present any claim of their damages to the commissioners’ court as a basis for the present independent suit for damages for trespass upon land. Having failed to pursue these remedies, appellees were not entitled to recover. Norwood v. Gonzales County, 79 Tex. 218, 14 S. W. 1057; McLennan County v. Miller (Tex. Civ. App.) 257 S. W. 680; Bell County v. Flint (Tex. Civ. App.) 91 S. W. 329, 330 (Writ Refused); Morgan v. Oliver, 60 Tex. Civ. App. 210, 129 S. W. 156 (Writ Refused); Stevens v. Jim Wells County (Tex. Civ. App.)
Appellant’s second motion for rehearing is granted, and the judgment is reversed and judgment here rendered for appellant. All former opinions of this court will be withdrawn, and this opinion substituted in lieu thereof ,
