E. F. Davidson v. State

White, Presiding Judge. This appeal is from a judgment of conviction for obstructing a public road. The mode and manner by which public roads are established in this State are prescribed by statute. (Rev. Stats., Arts. 4359 to 4390, inclusive.) One of the prerequisites is that the jurors appointed to lay out the road shall, before proceeding to act as such, take the oath prescribed by the statute. (Rev. Stats., Art. 4368.) The rule is well established that, in order to condemn private property to public uses, the law authorizing and directing it must be strictly observed and pursued, and the doing of what the law requires is a condition precedent to the authority to condemn. (White & Willson’s Cond. Oases, sec. 393.) A public road cannot be laid out and established without the requirements of the law in such cases having been first complied with. ■ (Floyd v. Turner, 23 Texas, 292.) In this case the jurors appointed tot, lay out the road did not [341] take the statutory oath before acting in the premises, nor did they ever take that particular oath. This oath was an essential prerequisite to the validity of their action. Where proceedings are summary, and a court proposes to exercise an extraordinary power under a special statute prescribing its course, that course ought to be exactly observed. (Mitchell v. Runkle, 25 Texas Supp., 132.) The court erred in refusing to give to the jury the special requested instruction asked on this point by defendant. Conceding, however, for the sake of argument, that the oath had been properly taken by said jury, and we would still consider the evidence as insufficient to support the judgment. It is testified by the witness Lee, the road overseer, that the obstruction complained of was “a wire fence running along and in and with the road, the fence being on the Lawrence survey, about two hundred yards in length.” This Lawrence survey belonged to and was owned by appellant. The report of the jury appointed to locate and lay out the road was as follows, viz: “Commencing at White Bock crossing, thence north 30 degrees west, with Lawrence survey to northeast corner of survey for S. J. Bollowitz, out of Bierly survey; thence west,” etc. How, if appellant’s fence was, as the witness Lee stated, on the Lawrence survey, it could not have been in a road running north 30 degrees west with the line of that survey. Because of error in the charge of the court, and because the evidence is insufficient, the judgment is reversed and the cause remanded. Reversed and remanded. Opinion delivered May 28, 1884.