While I concur with the majority of the court in affirming the judgment in this case, yet I do not agree with some of the propositions asserted in the opinion. I do not believe the land of a citizen can be taken for road purposes without due process of law, and I further hold that unless, in condemning land for a public road, the person whose land is condemned has had a day in court, he and those holding under him are authorized to peaceably resume possession of land so illegally condemned for road purposes, and to remove any obstruction therefrom. Nor does it occur to me that the authorities cited support the views expressed in the opinion. In Dodson v. State (Texas Criminal Appeals), 49 Southwestern Reporter, 78, it appears that the party had a prescriptive
right, and in such case no condemnation proceedings were necessary. In Crouch v. State, 39 Texas Criminal Reports, 148, condemnation proceedings were instituted. Appellant, Crouch, appeared in court. His land was condemned, but no damages were awarded. In that case the court had jurisdiction. Appellant had his day in court, and had his remedy on the question of damages. If he was dissatisfied with the failure to allow him damages, he had his right of appeal. Besides this remedy, he had the right to enjoin the same or sue the county for damages, as was said in that case. I can not think that said case is authority for the proposition that, where the owner had no notice of the condemnatory proceedings, and did not appear in court, he would be bound by the order condemning his land. As to him the jurisdiction of the court did not attach, and he could disregard the order of the court. The Constitution (article 1, section 17) guarantees that no person's property shall be taken or appropriated to public use without adequate compensation being made, etc. And our statute (articles 4670 to 4715, inclusive) prescribes the mode by which the land of a citizen may be taken for public road purposes, and this mode must be pursued. At least, before this can be done, the jurisdiction of the court must attach. This view is in harmony with the decisions of our Supreme Court on the subject, the decisions holding that, in order to legally condemn land for a public road, the owners or their agents must be notified in accordance with the statute. This is jurisdictional. Evans v. Land Co., 81 Tex. 622
[81 Tex. 622]; Railway v. Austin (Texas Civ. App.), 40 S.W. Rep., 35. And see the decisions of this court. Bradley v. State, 22 Texas Crim. App., 330; Wynn v. State (Texas Crim. App.), 42 S.W. Rep., 289. In the majority opinion it is held that, although land of a citizen be taken without due process of law, he can not peaceably retake possession of the same, but must appeal to the courts by a suit for damages. I do not believe that this is in accord with the spirit of our Constitution or the decisions of our courts on this subject. If a citizen can be driven to a suit for damages where a road may have been established across his land without any notice to him, then the statute of limitations of two or four years would cut him off of all right to recover; whereas, if title to the land remains in him until he is legally deprived thereof by condemnatory proceedings under the Constitution, then he can avail himself of an action at any time within the period of limitations which might give the public of a prescriptive right. I have deemed it proper to thus express my views, because they are utterly variant with those entertained by a majority of this court. However, it does not occur to me that the questions heretofore discussed control the result of this case, inasmuch as, in my view, the public has gained a prescriptive right to the road in question by having laid it out and worked it from time to time, and having used and occupied it as a public road for a sufficient time to gain a prescriptive right thereto. The question then presents itself, what is a sufficient time to give the public a prescriptive
right to a highway? In Cunningham v. San Saba County (Texas Civil Appeals), 20 Southwestern Reporter, 941, on this subject the court uses the following language: "As a general rule, before a highway can be established by prescription, it must appear that the general public have a claim of right, and not by mere permission of the owner, under some definite way, without interruption or substantial change for at least the longest period of limitation prescribed by statute against an action for the land; and many authorities hold that such use must be for at least twenty years." This use, it appears, must be so adverse as to put the owner upon notice that an adverse right was asserted. See Franklin County v. Brooks, 68 Tex. 679. The exercise of this right must not be merely permissive, but must be in some manner the exercise of a claim to an easement or highway. Smith v. State (Texas Crim. App.), 40 S.W. Rep., 736. I do not understand the latter case to lay down the proposition that in our State twenty years adverse occupancy is necessary to a prescriptive right, as that question was not necessary to that decision. I think a sound doctrine on this proposition is in consonance with our statute of ten years limitation as to real estate, which gives a right to the land by mere adverse occupancy. Recurring to the statement of facts, it is shown that the road was laid out in 1883, and again in 1885, and has been recognized as a public road by the county since that time. Various orders of the court show it has been worked as a public road from 1885 up to the time this obstruction was placed across it; that is, the portion at which the obstruction was placed. The road leads from the county seat of Jones County to the county seat of Fisher County, and was used by the general public and traveled as a highway. Its use as such, it occurs to me, apprised the owner, if he had been there, that the public, including the county, was claiming the land occupied by said road as a highway or easement, and, such use having been continued for ten years without interruption, in my opinion, a public road was established by prescription. There is no question that appellant placed the obstruction there. He claims, however, it was not done willfully, but he believed he had a right to do it; that he had been informed that the road in question was not a public road, etc. I think the testimony shows that he knew at the time he placed the gate there that it was a public road, and the record shows he had full knowledge of its use by the public, and of its claim as a public road. I think this fills the measure of proof that the act was done willfully on his part. See Crouch v. State, 39 Tex.Crim. Rep..