Race v. State , 43 Tex. Crim. 438 ( 1901 )

ON MOTION FOR REHEARING. The judgment was affirmed at the Tyler term, 1901, and now comes before us on motion for rehearing. Appellant insists the court erred in affirming the judgment, in the absence of sufficient evidence under the law to establish that the road obstructed was a public road. We do not think the original opinion in this case is at all in conflict with the decisions of the Supreme Court on the question as to what is a public road. In Gowhenour v. State, 33 Texas Criminal Reports, 538, in passing upon a similar question, we said: "The evidence discloses that the fence was erected by Mrs. Spears across a road which had been laid out by the commissioners court as a public road; that it had been worked and traveled as a public road since 1889; that overseers had been appointed and hands apportioned each year thereafter for the purpose of working and keeping it in repair; that appellant was a hand thus apportioned, and had also acted as overseer in working said road; and that he removed the fence from across the road. It also appears that Mrs. Spears had not been paid any damages for thus appropriating her land for such purposes, nor is it shown that she ever asked for or claimed such damages or compensation. She had her remedy by civil proceedings in regard to this matter." So we hold in this case that whether the land used as a public road has been paid for or not is a matter that does not affect the question as to whether or not the road is a public road. In McWhorter v. State, 43 Tex. 666, the Supreme Court said: "We are of the opinion that the road may be shown to be public by other evidence than the production of the order of the county court establishing it as such. While there is some obscurity in parts of the evidence, and it is apparently to some extent conflicting, we think it may well have satisfied the jury that that part of the road obstructed by appellant had long been used as a public road, and had been recognized as such by order of the county court apportioning hands to work it." A road may be shown to be a public road by other evidence than by the production of the order of the county court establishing it as such. Long-continued usage, with assignments of hands to work the same by the commissioners court, regardless of whether all of the steps necessary were taken to a statutory condemnation of the same as a public road would make the same a public road. We find no authority holding that the bare fact that the commissioners court has failed to comply with any particular clause of the statute under which they are authorized to act in condemning land for public road purposes per se would vitiate the orders of the commissioners court, and render the land so taken not a public road. The question of time that the road may have been used as such, as we understand the matter, is not at all material in considering the question as to whether the same is public. As stated above, the orders of the commissioners court designating the road may be irregular, but if the commissioners court assigns hands to work a certain road, thereby declaring it a public road, and the hands do work it, and the public use it as such, it then and there becomes a public road. As indicated in the Gowhenour case, supra, we have no concern with whether or not appellant has been paid his damages. The farthest this court has ever gone on the question of compensation for land taken is, that the party can prevent the same being taken in the first instance. Bradley v. State, 22 Texas Crim. App., 330; Thompson v. State, 22 Texas Crim. App., 328. Our Constitution guarantees a person's property shall not be taken, damaged, or destroyed or applied to public use, without adequate compensation being made, unless by the consent of such person, and when taken, except for the use of the State, such compensation shall be first made. If this was a case in which the commissioners court attempted to take appellant's land, then he could invoke the beneficent principle enunciated in the Constitution. But the property has already been taken, or used, designated, and known as a public road. Then, what are his rights? Can he obstruct the same, inclose it, and use it to the exclusion of the public? We say not. He has his remedy through the civil courts of the country. What they are we are not called upon to say. We hold that the evidence in this case, under an unbroken line of decisions, supports the proposition that the testimony shows the road was a public road, and that appellant willfully obstructed the same. For a full discussion of what is a public road, see Berry v. State, 12 Texas Crim. App., 249; Ball v. State, 13 Texas Crim. App., 269; Meyer v. State, 37 Tex.Crim. Rep.; 1 White Civ. App. Cases, sec. 81; Dill. Mun. Corp., sec. 631; Elliott on Public Roads, secs. 114, 123, 127, 160.

The motion for rehearing is overruled.

Motion overruled.