Stewart v. El Paso County

JAMES, Chief Justice. This is an appeal from the refusal of a temporary injunction. It appears that there was a narrow road in existence which had been acquired by the county by purchase, and the Commissioners’ Court, upon their own initiative, began proceedings and condemned a certain strip of land approximately 13 feet wide by about 1300 feet long, belonging to appellants, in order.to widen said road, and from which condemnation proceedings an appeal was taken and is pending. The appellants filed their petition in the District Court for injunction, alleging matters concerning the proceedings which they claimed rendered the same a nullity. The first assignment of error alleges that the condemnation judgment is a nullity because no notice by advertisement or otherwise was given of an intention to apply for or to make the alteration by any one; because the Commissioners’ Court did not make a full investigation of said alteration, and did not find that the public interest would be better served by said alteration; because the alteration was not by unanimous consent of the commissioners; because the minutes of the court are not signed by the county judge and attested by the clerk; because the last [146] order was not passed at a regular term; and because the jury of view did not lay out said alteration with the county surveyor; and did not make their report to the next regular' term of the Commissioners’ Court. We conclude that it was within the power of the Commissioners’ Court tó institute the condemnation proceedings upon their own motion, the road in question proposed to be altered being one acquired by purchase and not by statutory proceedings. Morris v. Cassidy, 78 Texas, 515; Kopecky v. Daniels, 9 Texas Civ. App., 305 (29 S. W., 533). Also that the commissioners were empowered to condemn the strip in order to alter the road by widening it, under articles 1537 and 4671, Sayles’ Bev. Stats. That the fact that a majority only of the commissioners consented to the condemnation order does not invalidate the judgment, the alteration in this case not being of a road acquired by the county through statutory proceedings. That the fact that the jury of view did not act in conjunction with the county surveyor did not render the proceedings void, see Onken v. Riley, 65 Texas, 468; and the allegation that the final order of condemnation was not rendered at a regular term was not sufficient to justify the granting of an injunction, in view of the fact that by article 1533, Sayles’ Bev. Stats., special terms of the Commissioners’ Court are authorized to be called, and the allegations of the petition as to regular term relate, presumably, to regular terms as distinguished from special or called terms. As to the allegation that the jury of view did not make their report to the next regular term of the Commissioners’ Court, we observe that after the order was made appointing them, the court adjourned sine die. And, in any event, the fact being that appellants, the owners, appeared before the court and contested the order entered upon the report, such matters do not operate to vitiate the proceedings: The allegations that the commissioners did not make a full investigation of the alteration and did not find that the public interest was better served by the alteration, we think are no grounds for injunction. The judgment recites that it appeared that the strip was needed for road purposes. That the matters relating to the subject were considered by the court/is involved in, and evidenced by, the adjudication itself, and it can not be held that the judgment was void because the Commissioners’ Court should have given the matters more consideration than they did. The allegation that the minutes were not signed, is of no force as it is not alleged that the order was not in fact made, and it appearing from the petition that an appeal was taken from the judgment, which could not be unless the judgment had been legally pronounced. The second assignment is that the court erred in refusing the injunction for the reason that the first order did not authorize the jury of view to lay out an easement of any kind, while said jury laid out an easement and such easement was condemned by the court in its final order. The jury reported describing part of the width of the strip by field notes and what they designated a “description for deed,” and part by field notes of what they called “description for easement.” The court [147] condemned the whole, and compensated for the wliole. By condemnation tor road purposes an easement only is obtained, hence the form in which the subject matter was reported and adjudged, designating what was to be taken, is immaterial. The third assignment is that the county could not take the land for the benefit of the El Paso Electric By. Co., a private corporation. The purpose of the condemnation was to widen the road, which, as we have seen, was a matter within the powers of the court. That the court may have had an intention, immediately or ultimately, to permit the road as widened to be used for street railway purposes, was immaterial to the exercise,of the power. We find no error and affirm the order denying the injunction.