Coleman v. Thurmond

Bonner, Associate Justice.

The first question presented for our decision involves that of the jurisdiction of the district court to control the proceedings of the commissioners’ court in the matter of the regulation of the street in controversy.

The proceedings on the part of the commissioners’ court was not, in the first instance, to condemn the land for the street, but to have it opened under the original dedication and survey of the town.

Appellee Thurmond claims that the title had vested in him. Hence the suit involved the title to land, and this gave the district court jurisdiction. Const. 1876, art. V, sec. 8.

The second and more important question in the case, and upon which judgment was rendered in favor of Thurmond, relates to his right to acquire the title to the street by virtue of the statute of limitations. Under the evidence the statute did not commence to run until the adoption by congress of the constitution of 1876, March 30, 1870.

From that date until the act of the legislature took effect, July 4, 1879, by which the state, through its subdivision, the county of Victoria, assumed jurisdiction over this street, and withdrew it from the town, more than five but less than ten years had elapsed.

Did Thurmond by his own and the adverse possession of Brownson, under whom he claimed, acquire title to the street by the five years’ limitation, during the time the town had jurisdiction over it ?

In the case of the City of Galveston v. Menard, 23 Tex., 349, it was held that adverse possession of a street for five years, with the requisites prescribed by the statute, would confer upon the possessor full title. It was, however, said that the possession which will give title to a street, under the statute, should be both under claim of deed and adverse. 23 Tex., 409.

We are not disposed to extend the doctrine of that case. 2 Dillon on Man. Corp. (3d ed.), §§ 667-676, citing numerous authorities in notes.

In the one now before the court, Thurmond had no deed to the street, but simply to the farm lots O and P, between which it ran. Hence one of the essential requisites of the statute, and of the above decision, is wanting, and Thurmond cannot claim under the five years’ limitation.

If it be admitted for the purposes of the present decision, that, in a proper case, he could invoke the statute of ten years, then do the facts show that he had such ten years’ limitation ?

Prom March 30, 1870, the date when the statute began to run, to July 4, 1879, the date when the act of the legislature withdrawing from this street the jurisdiction of the town of Victoria took effect, was less than ten years. Hence, to complete the bar of ten years before the order of the commissioners’ court complained of, August 26, 1880, the statute must not only be counted against the town hut against the county also. This raises the question whether, in such cases, the statute would run against a county.

There is a distinction between municipal corporations proper, such as chartered towns and cities, or towns and cities voluntarily organized under general incorporating acts, and involuntary quasi corporations, such as counties. “ Municipal corporations proper are called into existence either at the direct solicitation or by the free consent of the persons composing them, for the promotion of their own local and private advantage and convenience. On the other hand, counties are at most but local organizations, which, for the purposes of civil administration, are invested with a few functions characteristic of a corporate existence. They are local subdivisions of the state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who. inhabit them.” . . „ a A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy.” 1 Dillon on Mun. Corp. (3d ed.), § 23; id., § 25, citing-authority in notes.

[Opinion delivered March 24, 1882.]

. Under our statute of limitations as to lands, the right of the state is not barred. R. S., art. 3200; Pasch. Dig., art. 4623.

As the state would not be barred in such cases, neither would the county, under our general statute on this subject, it being but a subdivision of the state, and having but a general control and authority over the streets in trust only for the use and benefit of the state at large.

The judgment of the court below is reversed and judgment ordered to be rendered in this court dissolving the injunction and dismissing the suit; the costs in both courts to be taxed against appellee Thurmond.

Reversed and rendered.

Associate Justice Stayton did not sit in this case.