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11 Tex. Civ. App. 557

32 S.W 928

Cunningham v. San Saba County

Court of Appeals of Texas

Decided January 29, 1896

Court of Appeals of Texas · decided 1896-01-29

<p>1. Public Road — Condemnation Without Notice.</p> <p>A county acquires no right to land taken by it for a public road by proceedings to lay off and establish the road of which notice is not given to the owner of the land as required by law.</p> <p>2. Same — Election of Remedies.</p> <p>Where a county takes land for a public road without notice or compensation to the owner, such owner, by the presentment to the Commissioners Court of a claim for the damages occasioned by the taking, and the institution of suit upon such claim, waives his right to recover the land so appropriated.</p> <p>3. Same — Limitation and Prescription — Re-entry.</p> <p>Where the owner of land over which there runs a public county road encloses the land, placing a fence across the road, which remains there until forcibly torn away by the sheriff without due process, this is a sufficient re-entry to interrupt the running of prescription and limitation in favor of the county.</p> <p>4. Interest — Damages.</p> <p>Where plaintiff suing for damages~does not ask interest thereon in his pleadings, such interest will not be allowed, but the judgment will bear interest at the legal rate.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1896-01-29

How this case has been cited

Cited by 9 later decisions — most recently March 1977

9 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 ON MOTION EOR REHEARING.

COLLARD, Associate Justice.

¶2 The statutes referred to in the motion for a rehearing (Code Cr. Proc., articles 124, 125) cannot avail the county, as in case of forcible entry and detainer proceeding, to continue the running of the statute in favor of the county, appellants having regained possession by building a fence across the road, because the county judge had no authority to issue the order to the sheriff to remove the obstruction across any road, except when the road was made a public highway “by proper authority.” The road in this case was never at any time made a public highway by “proper authority,” and the county had no title to the road as a public road by prescription, when appellants regained possession. Article 124 reads: “Whenever any road, bridge or crossing of any stream is made by proper authority no person shall place an obstruction across such highway,” etc. Article 125 reads: “After indictment or information presented against any person for violating the preceding article any one, in behalf of the public, may apply to the county judge of the county in which such highway is situated, and upon having proof, such judge, either in term time or in vacation, may issue his written order to the sheriff or other proper officer of the county directing him to remove the obstruction,” etc. If this summary proceeding should be held in a proper case to have the effect of continuing the statute of limitation in force where possession of the county has been interrupted by a claimant of the land through which the road runs, as would be the effect of a recovery by the county in case of forcible entry, it could not apply except where the road is a public highway, made so by proper authority. The statute was improperly invoked against appellants, and it did not authorize the county judge to issue the order. They had not violated the statute. See “Roads, Bridges and Ferries,” chap. 1, Revised Statutes, p. 630 et seq., and former opinion in this case. The motion is overruled.

¶3 Overruled.

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