author: McDONALD, Chief Justice. BROWN and SPEER, Justices

text:
    TURNBOW et al. v. BLAND et al.
    No. 14118.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.

      Gerald C. Mann, Atty. Gen., and R. E. Kepke and James Noel, Asst. Attys. Gen., for appellant State.
    Edwin M. Fulton, of Gilmer, Hendricks Brown and Mike E. Powell, both of Fort Worth, and Trueheart, McMillan & Russell, of San Antonio, for appellant Turn-bow.
    Florence & Florence, of Gilmer, for ap-pellees.
   McDONALD, Chief Justice.

This is a suit in the form of trespass to try title, brought by J. F. Bland and others against W. C. Turnbow, in which the State of Texas intervened as a party defendant. The suit is principally one of boundary. It is what is sometimes referred to as a vacancy suit. Plaintiffs were the landowners and those claiming mineral interests under them. Turnbow and the State sought to establish a vacancy SO varas wide between the east line of the David Ferguson Survey and the west line of the G. W. Hooper. The land in controversy lies in Upshur County. Turnbow was the holder of mineral grants covering the alleged vacancy, the first issued to him on October 26th, 1938, by Wm. H. McDonald, Commissioner of the General Land Office, and the second, a corrected grant, issued to him on April 22nd, 1939, by Bascom Giles, the succeeding Land Commissioner.

Plaintiffs alleged that the mineral grants in question were invalid because there was no vacancy between these two surveys.

Contemporaneously with the filing ■ of this suit, there were also filed three other suits, by landowners similarly situated, in the District Court of Upshur County, against Turnbow, in which the State intervened. By agreement of the parties the four suits were tried together, under a stipulation that all evidence, as far as applicable, should be considered in all four causes, but that a separate judgment should be entered in each.

' After the close of the testimony, the parties agreed that the jury should be dismissed, and the causes were submitted to the court.

The court rendered judgment in favor of all of the plaintiffs, and against the defendant Turnbow and the State, adjudging that there was no vacancy between the two surveys, and that the mineral grants to Turnbow were for such reason invalid.

Turnbow and the State have appealed, the four causes being submitted together in this court, although separate judgments will be rendered here, as was done in the trial court. Turnbow v. Free, 149 S.W.2d 615; Turnbow v. Richardson, 149 S.W.2d 616; Turnbow v. Free, 149 S.W.2d 617.

The cause was tried by all parties on the theory that both surveys were actually surveyed on the ground, and the testimony related to the search for the footsteps of the surveyors on the ground.

The trial court found that the surveyor who surveyed the Ferguson, the junior survey, actually went to the east of the west line of the Hooper, thus creating an overlap, and that consequently the east line .of the Ferguson, as a matter of law, became a common line with the west line of the Hooper, the older survey, eliminating any possibility of a vacancy between the two surveys.

The trial court, in rendering judgment, ordered that a certain map, plaintiffs’ Exhibit K, be filed with the clerk of the court, and be retained as a part of the papers in the cause, in order better to understand and identify the findings of the court.

We include here a rough sketch showing the general location of the Hooper, FerT guson, and some of the surrounding surveys. The sketch is not drawn to scale, and is for purposes of illustration only. The tracts lettered a, b, c, and d, indicate the general location of the respective lands owned by plaintiffs.

The surveyor witnesses for both sides testified in detail regarding the work they did in seeking the boundary lines in question, and were in turn cross-examined at great length.' They all made studies and comparisons of the field notes of surrounding surveys, and searched on the ground for lines and corners of surrounding surveys that might be helpful in locating the lines of the Hooper and Ferguson. Each of them produced maps purporting to show the results of the work he had done, and each of them, particularly upon cross-examination, was required to scale distances from various points shown on his map to test the accuracy of his work, and to present the respective theories of the parties.

The efforts being to trace the footsteps of the original surveyors, the case presented questions principally of fact, rather than law.

In our review of the judgment of the trial court, we are guided by the rule of law announced in 3 Tex.Jur. page 1102, and in decisions of our courts too numerous to mention: “The findings of the trial court in a case tried without a jury have the same force and are entitled to the same weight as the verdict of a jury; and it is well settled that such findings will not be disturbed by an appellate court where there is some evidence to support them, even though the evidence is conflicting and the appellate court might have reached a different conclusion therefrom. It is also well settled that findings of fact by the trial court will be upheld unless they are manifestly erroneous, and that they will be overruled only where they are without any evidence to support them, or where they are so against the great weight and preponder- ’ anee of the evidence as to be manifestly wrong.”

The only surveyor witness testifying for the plaintiffs was Ben Garrett, who prepared the map, plaintiffs’ Exhibit K, which the trial court referred to in his judgment. The court, in his judgment and in his findings of fact, adopted the findings of Garrett’s survey as reflected on this map.

Garrett testified in great detail regarding the work he did on the ground, and the study he made of the surrounding surveys, and we believe that the trial court was justified in accepting his testimony as correct.

The Hooper, King, Woodfin, Sanches, Hathaway, Castleberry, Rankin, McCray (also known as the Marshall Mann) and the Robinson (also known as the Robertson), were all surveyed in the year 1838. All except the Hathaway were surveyed in the spring of that year. The Hathaway was surveyed in November, 1838. Although from the dates of the field notes it would appear that some of the surveys were made before others, yet, several call for corners or lines of surveys of later date. For instance, the Sanches, dated April 20th, calls for lines of the Hooper, dated May 14th. The King, dated May 10th, calls for the north line of the Hooper, and to pass the northwest corner of the Hooper.

The situation appears to be the same as that discussed by the Austin Court of Civil Appeals in Phillips Petroleum Co. v. State, 63 S.W.2d 737, writ refused, where it is said that the surveyors probably recorded their work in field books on the ground, and after returning to their offices, made up their plats and field notes, giving them the date of the office compilation instead of the date the work was done in the field.

We point this out because appellants make much of the fact that the Wm. King notes are dated four days earlier than the Hooper notes, the relevancy of which will appear.

The only lines or corners of surrounding surveys called for in the Hooper notes are as follows: (1) The notes call to begin at its northwest corner, and at the northeast corner of a survey the bearing trees of which are marked C. H. The bearing trees of the Rankin are marked C. H. (2) The southeast corner of 'the Hooper is called to be in the west line of a survey which all parties concede to be the Robinson, and at 520 varas north of the southeast corner the Hooper notes call to pass the northwest corner of a survey conceded by all parties to be the Robinson. (3) The northeast corner of the Hooper is called to be in the south line of a survey conceded to be the McCray. Going west from the northeast corner of the Hooper, the notes call to go along the south line of the McCray, pass its southwest corner, thence along the south line of a survey marked TNC, which, from the evidence, is bound to have been the King and Woodfin.

The Rankin survey was abandoned, and a part of it is now occupied by most of the Ferguson Survey. The Woodfin and King Surveys were made the same day by the same surveyor, and the east and south lines of the two surveys appear to be the same, except that the Woodfin appears to go farther north and farther west.

The same man, G. W. Hooper, surveyed the King, the Woodfin, and the Rankin. The Rankin and Hooper notes bear the same date. The Rankin calls to begin at the northwest corner of the Hooper, and the Hooper calls to begin at the northeast corner of the Rankin, and both call for the same kind of witness trees and at the same course and distance at this corner. The King, surveyed by the same man who surveyed the Rankin, in going west from its southeast corner, calls to pass the northwest corner of a survey marked GWH at 3600 varas.

This last call is the subject of much controversy in this case.

Appellants contend that Garrett’s reconstruction of the Hooper Survey is built entirely upon this passing call in the King notes. We believe, as we will show, that Garrett’s reconstruction of the Hooper was not built upon this passing call, but that the passing call in the King notes is a circumstance supporting his testimony and the findings of the trial court.

The testimony of Garrett, concerning his work on the ground and his efforts to locate the west line of the Hooper, that is' to say, where McClelan actually ran the Hooper west line, is in part as follows:

He began his work on the ground in the area where he thought the southeast corner of the King was located. He testified that there was not much dispute among surveyors as to the location of the southeast corner of the King. From passing creek calls in the Woodfin, King and McCray notes, he made a tentative location of the southeast corner of the King, and then made a search for witness trees. At the proper course and distance he found the root system of a large hickory tree, and a large pine stump standing two feet above the surface. These were the kind of trees called for at-the respective locations in the King notes.

He then went west 3600 varas and set a stake for future reference. In going west he found a creek and the old Nacogdoches Road at approximately the proper distances called for in the Woodfin notes, the creek, or bayou, also being called for in the King notes. He continued west to what he considered the vicinity of the southwest corner of the Woodfin Survey, and there made a search for witness trees. He found a large post oak tree marked TNC, which was the marking of witness -trees of the Woodfin and King Surveys. He cored the tree, finding that th-e marking was made over a hundred years before. There was a considerable amount of testimony about this TNC tree. Plaintiffs’ witnesses testified that they could distinguish the markings on the tree, defendant’s witnesses testified that they' could not. The trial court saw and heard the witnesses, and apparently believed those who said they could distinguish the markings. The testimony being in conflict, the findings of the trial court are binding on appeal.

Reversing the call in the Woodfin notes for the witness tree, he found a rock mound at the proper distance. Proceeding from the rock mound the course and distance set out in the field notes for the other witness tree, he found the root system of a red oak, the kind of tree called for in the field notes. From this data he set up this corner on his map as the southwest corner of the Woodfin. No patent was issued on the Woodfin notes. Later, a patent was issued covering the J. R. Wadkins Survey, in this area, and the witness trees called for in the Wadkins notes are of the same kind and at the same course and distance as those called for in the Woodfin notes, and both are called to be marked TNC. So it may be reasonably concluded that the southwest corner of the Wadkins and the southwest corner of the Woodfin are the same.

Then, going back to the stake he had temporarily set at 3600 varas west of the southeast corner of the King, he began a search for the witness trees called for in the Hooper notes at its northwest corner. From this temporary stake, at the course and distance called for in the Hooper notes, he carefully removed the top soil, and at about eighteen inches below the'surface began to trace a root system to the place the roots led into a stump. Reversing the call from what he considered to be the center of the stump, he relocated his stake, finding it to be 3599.2 varas west of the southeast corner of the King, and 2.59 varas south of the line running from the point he had located as the southeast corner of the King to the point he had located as the southwest comer of the Woodfin.

At the course and distance the Hooper notes called for the other witness tree, he. uncovered quite a root system of what he considered a hickory tree, which was the kind of tree called for at this position in the Hooper notes. The course and distance of these two root systems, from the place he had last located his tentative corner, compared exactly with the calls in the Hooper notes. Then, digging below the surface at this location, he found, in a vertical position, the decayed remains of a very old oak stake. The location of this oak stake represents the location of the northwest corner of the Hooper survey as set out on the Garrett map and as found by the trial court.

Garrett then proceeded south from this point. The Hooper notes call to cross the Cherokee Trace (an old road) at 1020 varas. Garrett crossed it at 1026.23 varas. The Hooper notes call to cross a creek 3850 varas. Garrett crossed it at 3862.8 . varas. He continued south to a point which he considered to be the inner ell corner of the Hathaway Survey.

It is well here to discuss the Hathaway Survey.

Hugh McClelan, who surveyed the Hooper in May of 1838, also surveyed the Hathaway, in November of the same year. His notes call to begin at the southeast corner of the Hooper, thence south 846 varas, thence west 5250 varas, thence north 485 varas, to the south line of a survey marked CH (the markings of the Rankin), thence east 440 varas to a corner, calling for a tree marked CH, thence north “with the E boundary of said survey” (evidently the Rankin) 361 varas to the southwest corner of the Hooper, thence east with the south boundary of the Hooper 4810 varas to the place of beginning. According to its calls, the lower part of the Hathaway goes 440 varas farther west than does the Hooper. McClelan, having made both surveys, evidently must have known where the southwest corner of the Hooper was when he surveyed the Hathaway. It will also be observed that the inner ell corner of the Hathaway appears to be the southeast corner of the Rankin, and it will again be remembered that McClelan called the northwest corner of the Hooper to begin at the northeast corner of the Rankin. So it may reasonably be supposed that he also knew the location of the southeast corner of the Rankin when he called the inner ell corner of the Hathaway to be at the same place. At approximately the course and distance called for in the Rankin and Hathaway notes, for a witness tree at this corner, marked CH, Garrett found a large pine stump, and at this point he found a rock mound.

Garrett continued south from this point to the south line of the Hathaway Survey, and then measured west to the southwest corner of the Hathaway, which is also the beginning corner of the Ferguson Survey, and the location of which was found to be the same by all of the surveyors for both sides in this case. Garrett found this distance to be 440.95 varas, only a fraction of a vara different from the distance in the fourth call of the Hathaway notes.

To our minds, remembering again that the same man surveyed both the Hooper and the Hathaway, this is one of the circumstances most strongly supporting Garrett’s theory of the location of the west line of the Hooper. From his field notes, Mc-Clelan must have located the most western line of the Hathaway 440 varas west of what would have been a south extension of the west line of the Hooper. Garrett found the distance between the two lines to be 440.95 varas, practically the same as found by McClelan.

Garrett set up the southwest corner of the Flooper, on his map, at a point 4800 varas south of his beginning corner. Fie could not find any evidence of witness trees at this corner.

He then went east, locating his southeast corner of the Hooper at a point 4814.8 varas (call distance 4810 varas) east and slightly north of the point he had set up as the southwest corner. He, as well as the surveyors used by appellants, located his southeast corner of the Hooper with reference to the northeast corner of the Castle-berry and the southeast corner of the Hathaway. Each surveyor presented his theories as to the location of this latter corner, and the trial court accepted the theory presented by Garrett. About the most significant point we notice as to this corner (of the Castleberry and Hathaway) is this: The field notes of the Hathaway call the south line to run 5250 varas. Garrett established his southeast corner of the Hathaway at 5256.84 varas from the agreed southwest corner, while appellants’ surveyors established their southeast corner at 5288 varas east of the southwest corner. This, to our minds, is a circumstance tending to support Garrett’s theory as to the location of the east line of the Hooper.

After establishing on the ground the point which he set up on his map as the southeast corner of the Hooper, Garrett surveyed north. At 520 varas (called for in the Hooper notes as the northwest corner of the Robinson) he found himself 2 varas south and 3 varas west of an old fence corner, but did not find any evidence of the Robinson witness trees. At 4800 varas north he found himself in an old orchard. Here he plowed up an area 115 feet square, searching for root systems or buried stumps of the witness trees called for.in the notesj stopping any time the plow encountered any substance of this nature. In so doing he located a large pine tap root. Reversing the call for a witness tree pine contained in the Hooper notes, he established what is shown on his map as the northeast corner of the Hooper. The point so found was 4800.5 north, no degrees 5½ minutes west from Garrett’s southeast corner of the Hooper. And from this corner, at the course and distance called for in the Hooper notes, he also found the roots of a blackjack tree, the kind of tree called for in the field notes.

From there he proceeded to what he had located as the southeast corner of the King, and from there to his beginning point.

It is well to point out here that appellants’ surveyors located the southeast corner of the King at a point a few varas north, but in practically the same line, east and west, as did Garrett.

We have set out this testimony in considerable detail because, if the trial court was justified in believing it, it eliminates any possibility of a vacancy between the two surveys, regardless of which location of the east line of the Ferguson is accepted, as will appear later in the opinion.

Except for certain questions relating to proof of title, which will later be considered, the judgment and findings of the trial court are, in the assignments of error, attacked upon two grounds: First, “because there is no competent evidence of any probative force” to support same; second, “because the evidence supporting said judgment is so against the great weight and preponderance of all the evidence as to render the judgment manifestly wrong, in that the court ignores the material, direct, positive and controlling evidence.” The quotations are taken from the assignments 'of error.

Appellants’ theories regarding the trial court’s findings, and regarding the location of the west line of the Hooper Survey, may be summed up as follows :

They charge that the trial court has fixed the beginning point from the passing call in the Wm. King notes.

They charge that Garrett’s testimony relating to the root systems, buried tree stumps, the buried stake, and the “TNC” tree, is so unreasonable that it has no probative force, and can furnish no support for the trial court’s judgment and findings.

They contend that the most certain and reasonable evidence establishes the northeast corner of the Hooper at a point 58 varas easterly from the point found by the trial court; that all original markings on the west line have disappeared; and that the only. means left for determining the west line is by course and distance from what appellants contend is the east line.

The surveyor witnesses. used by appellants were W. E. Jones, J. E. Beavers, and W. D. Elliott. We believe that a fair summary of their testimony relating to the Hooper Survey is as follows:

That for many years Jones’ wife owned an 84-acre tract in the northeast corner of the Hooper Survey; that Jones moved on it in 1902; that D. A. Culpepper, his father-in-law, pointed out the northeast corner of the tract to Jones in 1901, at the time he gave the tract to Mrs. Jones; that it was pointed out to him as being the northeast corner of the Hooper Survey; that in 1894 or 1895, during the time the timber was being cut out, Jones saw a stump of very large pine north 50 east 2 varas from an old pine knot in the ground; that this was the corner pointed out to him by Culpepper, and that Jones later built a fence south from this point and that it constituted the east line of his land; that at about the same time he and another surveyor surveyed along this line where the fence was built and found a marked line; that he also owned a tract of 98 acres immediately south of the 84-acre tract, and that he extended the east fence of the 84-acre tract down the east side of the 98-acre tract; that in 1929 he made a search for the trees called to witness the northwest corner of the Robinson and found a blackjack tree standing at the proper course and distance from the point he now contends is the northwest corner of the Robinson; and that from this data Jones placed the east line of the Hooper something over 5t) varas east of where Garrett and the court found it to be. That Beavers located the southeast and northeast corners of the Castle-berry from old stumps and remains of stumps ; and that he had located the northwest corner of the Robinson, in 1932, from the remains of an old blackjack tree. That Beavers, on a recent survey, found the root system of the other witness tree at his northwest corner of the Robinson. That Elliott commenced his survey of the Hooper at the northwest corner of the Robinson. That Jones, Beavers and Elliott all agreed as to the location of the northwest corner of the Robinson. That they all established their southeast corner of the Hooper at 520 varas south of their northwest corner of the Robinson, but did not find anything on the ground there. That Elliott found a fence running east from his northwest corner of the Robinson, which he thought was the line between the Sanches and the Robinson. That Jones and Elliott established the west line of the Hooper, by course and distance, at 4810 varas west of what they thought to be the east line, but could not find any evidence of a corner at either the northwest or the southwest corner. That the west line of the Hopper as established by them did not encounter any fence or fence corner, but was considerably east of 'the line of occupation. That for. some reason not made clear in their testimony they extended the west line of the Blooper south 4821 varas, instead of 4800 varas, the distance set out in the field notes. That they found the west line of the Hooper to be along the east line of the alleged vacancy.

With respect to appellants’ attack upon Garrett’s testimony relating to the tree roots, stumps, and the like, we observe that appellants’ surveyor Jones relied upon a stump he had seen at- the northeast corner of the Hooper, and the remains of an old blackjack tree he had seen at the northwest corner of the Robinson. That Beavers relied upon the remains of stumps, some of which were buried, -at the southeast and northeast corners of the Castle-berry, and the northwest corner of the Robinson. That Elliott relied upon root systems at the northwest corner of the Robinson, hunted for stump holes at the southeast corner of the Hooper, and relied upon a tree lying on the ground at the beginning point of the Ferguson. It appears that the surveyors on both sides used this method in searching for the old corners.

And reference may here be made to the rules of evidence in this class of cases.

For upwards of a hundred years it had been thought that the Ferguson and Hooper Surveys adjoined. The Rankin called to adjoin the Hooper, and the Hooper called to adjoin the Rankin. The Ferguson had been surveyed three times, and each of the surveyors recited in his notes that he had connected with the Hooper. All of the maps in the General Land Office had shown the two surveys to adjoin. In 1911, when efforts were being made to obtain a patent to the Ferguson, the Land Commissioner gave instructions to take care to connect with all of the adjoining surveys, all of which had been patented long before. The field notes of the Ferguson, and the description in the patent, called for adjoinder with every surrounding survey. There had always been a joint line of occupation between the lands in the Ferguson, and the lands in the Hooper.

Appellants used this language in their brief, referring to a survey made by Jones: “In 1929, before visions of oil had changed these old land lines.”

Titles to land are not to fail merely because old markers may have disappeared, or because it may be difficult to trace the footsteps of the surveyor.

The lengthiest discussion of the rules of evidence applicable in cases like this one is found in Taylor v. Higgins Oil & Fuel Co., Tex.Civ.App., 2 S.W.2d 288, 300, writ dismissed. In this case the rule is stated to be: “ ‘Every rule of evidence laid down for guidance in boundary questions is for the purpose of ascertaining the true location of the line in dispute, by which is meant the place at which the original surveyor ran the line. After 90 years have elapsed and time has destroyed in large measure the evidence left by the original locater, it is then permissible, not only permissible, but of necessity is required, that we resort to any evidence tending to establish the place of the original footsteps which meets the requirement that it is the best evidence of which the case is susceptible.’ ”

In the case on appeal, all of the surveyors on both sides, in their efforts to find where the original surveyors actually went, searched for tree roots, buried stumps, stumps that were not buried, trees lying on the ground, stump holes, old fence lines and corners, creeks and old abandoned roads, and markings on trees made a hundred years ago; and all of them studied the field notes of surrounding surveys as well as corners and lines of surrounding surveys on the ground. And, in turn,1 they all testified concerning these matters. We find nothing from the testimony of appellants’ surveyors, or from any other circumstance in the case, to warrant the criticism so made of Garrett’s testimony. In short, the surveyors on both sides offered their testimony. The trial court saw and heard them, and found as he did. All we can see in the case is á conflict of testimony, the weighing of which was left to the trial court.

In all of the cases, from Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304, on down, the law has been that search must be made for the footsteps of the surveyor, and that, when found, the case is solved.

All of the surveyors testifying in the case, located the east line of the Ferguson at points east of what the cotirt found to be the west line of the Hooper. So, if the trial court was justified in locating the west line of the Hooper as he did, there would be an overlap, and consequently no vacancy.

The old Rankin Survey, as we have pointed out, was abandoned. The David Ferguson was first surveyed in 1849, by Thos. D. Brooks. This survey was not approved by the Land Office. Subsequently, J. M. Glaseo, County Surveyor, sent to the Land Office his corrections of the Brooks notes, but they were not approved. Finally, in 1911, W. C. Elms, County Surveyor of Upshur County, made a survey of the Ferguson which was approved by the Land Office, and upon which the patent was issued.

Although it is not material to our holding, it is of some interest to note from the evidence that Elms was County Surveyor of Upshur County at the time of this trial, and appears to have been available as a witness, but was not used by either side.

The Brooks, Glaseo and Elms field notes all call for the most eastern northeast corner of the Ferguson to be at the northwest corner of the Hooper, and to run south along the Hooper west line. But' the decisions of our courts pertaining to calls for adjoinder are not helpful to us here, because the surveyors on both sides offered testimony which, if correct, showed that the various surveyors of the Ferguson were mistaken in calling for the adjoinder. And, as the courts have held, if the footsteps of the surveyor are located on the ground, the call for adjoinder, like any other, conflicting call, must yield. Although appellees contend that the presumptions arising from the call for adjoinder are alone sufficient to sustain the judgment of the trial court, we do not reach our holding on that basis. Our holding is based upon the opinion that there was sufficient evidence, if believed by the trial court, to warrant his findings and judgment.

All of the surveyors were substantially in agreement as to -all of the calls of the Ferguson up to and including its most northern northeast corner. There was some disagreement between them as to the location of the ell corner at or near the southwest corner of the J. R. Wadkins Survey, but the location of that corner is not controlling, as we shall show.

The call in the field notes from this last-mentioned corner, to the most eastern northeast comer, is, “Thence east with the south line of the Wadkins and Wm. King at 2008 vrs. the N. W. corner of a survey in the name of G. W. Hooper”, and then calling for a hickory tree and a blackjack stump hole. These were the witness trees called for in the Brooks notes, but were not the witness trees called for at the northwest corner of the Hooper in the Hooper notes.

The surveyors on both sides contended that this call for distance was erroneous. Garrett contended that the correct distance was 1989.73 varas. Appellants’ surveyors contended that the distance was 1994 varas. So it may be said, we believe, that the material evidence as to this corner was reduced largely to testimony relating to the objects found on the ground.

Garrett’s testimony, -in substance, was:

That he located his southwest corner of the Wadkins, and this ell corner of the Ferguson, with reference to the TNC tree mentioned earlier in this opipion, and from the root system of another tree of the kind and at the course and distance called for in the Woodfin and Wadkins notes. That at 2008 varas east of this point he found nothing on the ground. That at 1991.4 varas he found an old pine knot. That he found a hickory stump hole. That by reversing the field note call, from this stump hole, he established what he set up, and what the trial court found, as the most eastern northeast corner of the Ferguson Survey. That at the course and distance where the field notes called for a blackjack tree, from the .position he had set up as the northeast corner of the Ferguson, he found the vertical roots of what he took to be a blackjack tree. That he thus placed his northeast corner of the Ferguson at about 1.75 varas west .of the pine knot he had found.

This point was 28.2 varas east of the west line of the Hooper, as set up by Garrett on his map and as found by the trial court. In other words, the trial court found an overlap of 28.2 varas at this corner. The Hooper being the senior survey, he adjudged the east line of the Ferguson to be a common line with the west line of the Hooper.

Garrett testified that, surveying south along what he had established on his map as the east line of the Ferguson, he found, at 137.4 varas south, a marked tree 2 varas east of his line, and at 350 varas, another marked tree 2 varas east of his line. He took blocks from these two trees; they were introduced in evidence; and Garrett testified that from the rings of the trees it appeared that the marks were made in 1911, the year Elms surveyed the Ferguson.

Garrett testified that the line of occupation ran south from the point he had established on his map as the northeast corner of the Ferguson Survey.

From the evidence it appears that the Ferguson Survey was cut up into blocks before the Hooper was; that the landowners in the east part of the Ferguson built fences along a line which for the most part runs south of the corner which the court found to be the northeast corner of the Ferguson; and that when the Hooper was later cut up into blocks, the owners in the Hooper occupied up to the fence lines which had been established by the Ferguson owners. We regard this as a circumstance which, to say the least, is consistent with the findings of the trial court.

Another circumstance consistent with the findings of the trial court is this : It will be remembered that the fourth call in the Hathaway is 440 varas. The notes of all the Ferguson surveys, going south past the southwest corner of the Hooper, call to go west 460 varas, thence south to the place of beginning, a call 20 varas longer than the call in the Hathaway. Garrett testified that the most eastern southeast corner of the Ferguson, as established by him, would be about 461 or 462 varas east of a line projected north from the beginning point of the Ferguson. In other words, a reversal of the last two calls in the Ferguson field notes would correspond, within a vara or two, with Garrett’s survey. And the difference between the Hathaway call of 440 varas and the Ferguson call of 460 varas is consistent with the theory of an overlapping of the Ferguson and Hooper.

Garrett testified that he made a search for evidence of witness trees at the point established by appellants’ surveyors as the northeast corner of the Ferguson, but could find nothing.

We believe that the following is a fair summary of the testimony offered by appellants to support their theories as to the location of the northeast corner of the Ferguson:

A landowner, H. Fenton, testified that he was present when Elms, or one of his assistants, drove a stake, in 1911, and that Elms told him that it was located as the northeast corner of the Ferguson Survey; that Fenton pointed out this stake, a pine knot, to the surveyor Jones several years before the trial. Jones testified that Fenton had pointed out this stake to him, and that it was at'the point established by Jones as the northeast corner of the Ferguson Survey. Why appellants did not produce Elms as a witness to support this theory is not disclosed in the record. Fenton also testified that formerly a hickory tree stood four or five steps to the northwest of the stake driven by Elms. Jones said that he had made several surveys around this point several years before the trial, and that a hickory stump had stood 80 west 5.4 varas from the stake claimed to have been driven by Elms. Elliott also testified ■ to having seen this same stake and hickory stump, but admitted, on cross-examination, that in surveys made by him before this contro- ■ versy arose, he had taken the line of occupation which ran south of Garrett’s northeast corner of the Ferguson as being the east line of the Ferguson and the west line of the Hooper.

The east line of the Ferguson as established by appellants’ surveyors coincided with the west line of the alleged vacancy, but was west of the line of occupation.

As appellants put it in their brief:

“We are not bothered with the comparative dignity of calls, whether or not one call, as such, ought to prevail over some other call. But we are trying here to ‘find the footsteps of the surveyor’ * *

Appellants contend that Garrett’s testimony must not be considered because, they claim, his calls, in his reconstruction of the Ferguson, do not close. While this may have had some bearing on his credibility, we do not consider that it is controlling on this appeal. In the first place, all of the surveyors placed the east line of the Ferguson east of the west line of the Hooper, as located by the court. In the second place, the controlling question was the location of the east line of the Ferguson.Particularly since all of the surveyors agreed that Elms’ notes were inaccurate, as to distance, in the call leading to the northeast corner, the other calls of the Ferguson Survey were not of controlling importance.

It seems to us that there is at least as much evidence to support Garrett’s location of the Ferguson as there is to support the location claimed by appellants. It being within the trial court’s province to resolve this conflict of testimony, we are without authority to substitute our opinions for his, even if we were disposed to do so.

Also, we are of opinion that the record, as a whole, reflects that the work of the surveyor Garrett was more thorough, more painstaking, more accurate, and more in harmony with the rules of law pertaining to cases of this kind, than was that of the surveyors who testified for appellants. It appears to us that he made more careful search for objects on the ground. He not only searched for evidence of witness trees at the corners he established, but also at the corners established by appellants’ surveyors.

Another circumstance which, to our minds, detracts from appellants’ argument that the Hooper must be built exactly upon course -and distance from what they contend is the east line, is the fact that many of the lines of these and the other surveys in the same area are shown to be, on the ground, either longer or shorter than the lines called for in the field notes. Also, while appellants’ east line of the Hooper appears to correspond with the line of occupation along the north end of the line, Garrett’s east line corresponds more nearly with the line of occupation along the south end of the line. Neither the east line of the Ferguson nor the west line of the Hooper, as established by appellants’ surveyors, corresponds with the line of occupation in that area.

Appellants contend that the landowners, by virtue of having made application to purchase vacant land adjoining their . land, have admitted the fact of the vacancy. The record reflects that the landowners were approached by other persons, who represented to them that they ought to make these applications to protect their interests. In the first place, we do not think that land could be conveyed in this fashion; and in the second place, we think the landowners offered sufficient explanation to relieve themselves of any such admissions. Their applications were rejected, and we think are immaterial on this appeal.

Appellants contend that, the suits being in trespass to try title, the landowners failed to make sufficient proof of their title from the sovereignty of the soil, and failed to make sufficient proof of limitation title because of failure to locate definitely the land which had been in their possession.

This suit was really one of boundary. Although it has been customary to bring boundary suits in the form of trespass to try title, the courts have long recognized the distinction between suits relating to the title, and suits relating to boundary. In fact, for a long time the distinction was even recognized in the rules which gave the Courts of Civil Appeals filial jurisdiction in the boundary cases.

The landowners specially pleaded the defendant’s claim of the vacancy, and his claim of mineral rights to the alleged vacancy. Turnbow also pleaded his mineral grants, and in his application for receiver recognized the plaintiffs as the owners of the lands adjoining the alleged vacancy, referring to “their lands”.

It is most apparent, from the whole record, that T urnbow bases his whole claim on the contention that there is a vacancy between the two surveys, and we certainly do not believe that the State is purposely claiming in this suit any land lying in either the Ferguson or the Hooper Survey.

If there is no vacancy, the position of appellants can be no better than that of trespassers. We consider that the record is entirely sufficient to show not only that plaintiffs were in possession, which would entitle them to maintain the suit as against a trespasser, but also that their possession was of a character sufficient to establish title by limitation, if there is in fact no vacancy. Appellants were clearly not claiming any land lying in either of these two surveys, but only the land lying in the vacancy, if there was a vacancy.

All assignments of error are overruled.

The judgment of the trial court is affirmed.

On Motion for- Rehearing.

We have carefully reviewed the assignments presented in appellants’ motion for rehearing. None of them raises any new questions, -and we would not enlarge upon our original opinion were it not apparent that appellants have a misconception of our opinion in some respects.

The 70th assignment recites that we hold that this is only a boundary suit. Our opinion follows the language of several Supreme Court decisions in saying that the suit is in the form of trespass to try title, but that it is principally one of boundary. It cannot be disputed that the location of the east boundary line of the Ferguson Survey and the west line of the Hooper Survey determine whether or not there is a vacancy between the two surveys. Our problem is to determine whether there is a vacancy.

The 75th assignment reflects a misconstruction of our holding. Our opinion is clear in pointing out, not that the Hathaway notes control the location' of the Hooper, but that the distances called for in the Hathaway notes are consistent with the distances in the Hooper lines as found by the- trial court. The consistency of the Hathaway calls with the Hooper calls, as found by the trial court, supports such findings.

The same kind of misconception is found in the 80th and 81st assignments. . Our holding is not based upon a theory of ad-joinder of the two surveys.

The 82nd assignment recites that we held that there had “always” been -a common line of occupation between the two surveys. Our opinion states our actual holding.

As to the 87th assignment, our opinion shows that our holding is not based upon Elms’ failure to testify.

The 88th assignment relates to the claim of appellants that Garrett’s field notes of the Ferguson Survey do not close. Our actual holding on this is plainly set out in the opinion. It is that the matter may have some bearing upon Garrett’s credibility as an expert witness, but that it is not controlling upon this appeal because the location of the east line of the Ferguson, with reference to the west line of the Hooper, determines whether there is a vacancy. The location of the other lines and corners of the Ferguson is not necessarily controlling; and, it may be pointed out, the findings and judgment in this cause are binding only upon the parties, and not upon owners of lands along the other lines of the survey.

In our opinion, the more specific, definite and reasonable evidence supports the judgment and findings of the trial court.

The motion for rehearing is overruled.

BROWN and SPEER, Justices

(concurring).

Because of the lengthy and strenuous motion for a rehearing that has been filed and carefully considered by us, the writers deem it necessary to make a few observations tersely touching the gist of the suit before us.

In the first place, regardless of the form of the pleadings, the evidence discloses that this is nothing more than a boundary suit. That is the sum and substance of the contention.

Appellants are contending that there is a strip of vacant land between the Ferguson and the Hooper Surveys. That is to say, that, when the. footsteps of the surveyors are traced and established, the east boundary line of the Ferguson Survey does not meet the west boundary line of the Hooper Survey, and that the land in controversy is a narrow strip thus left uñsurveyed.

We held, in the original opinion, that the testimony and evidence tending to show that there is no vacancy is more certain and more credible than the testimony and evidence adduced by the appellants tending to show there is a vacancy. We likewise held that on such conflicting testimony apid evidence the trial court’s judgment should not be disturbed. Our holding is that the evidence is sufficient to support the judgment rendered by the trial court.

We heartily concur in the holdings expressed by Chief Justice McDONALD in the original opinion and in the conclusions reached in overruling the motion for a rehearing.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    TURNBOW et al. v. FREE et al.
    No. 14119.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.
    Gerald C. Mann, Atty. Gen., and R. E. Kepke and James Noel, Asst. Attys. Gen., for appellant State.
    Edwin M. Fulton, of Gilmer, Hendricks Brown and Mike E. Powell, both of Fort Worth, and Trueheart, McMillan & Russell, of San Antonio, for appellant Turn-bow.
    Florence & Florence, of Gilmer, for ap-pellees.
   McDONALD, Chief Justice.

This is a suit in the form of trespass to try title, brought by J. W. Free and others against W. C. Turnbow, in which the State of Texas intervened as a party defendant. It is one of the four suits mentioned in W. C. Turnbow et al. v. J. F. Bland et al., 149 S.W.2d 604, on this day decided by us.

The controlling facts are the same as those in the Bland case, and the issues are the same. What we said in that case is decisive of this case.

All assignments of error are overruled.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Motion for rehearing overruled per conclusions filed in W. C. Turnbow et al. v. J. F. Bland et al., Tex.Civ.App., 149 S.W. 2d 604.


text:
    TURNBOW et al. v. RICHARDSON et al.
    No. 14120.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.
    Gerald C. Mann, Atty. Gen., and R. E. Kepke and James Noel, Asst. Attys. Gen., for appellant State.
    Edwin M. Fulton, of Gilmer, Hendricks Brown and Mike E. Powell, both of Fort Worth, and Trueheart, McMillan & Russell, of San Antonio, for appellant Turn-bow.
    Florence & Florence, of Gilmer, for ap-pellees.
   McDONALD, Chief Justice.

This is a suit in the form of trespass to try title, brought by S. E. Richardson and others against W. C. Turnbow, in which the State of Texas intervened as a party defendant. It is one of the four suits mentioned in W. C. Turnbow et al. v. J. F. Bland et al., 149 S.W.2d 604, on this day decided by us.

Except for the questions relating to the right of S. E. Richardson to maintain this suit, the controlling facts are the same as those in the Bland case, and the issues are the same. What we said in that case is decisive of this case, except as to the matters hereinafter referred to.

Appellants contend that S. E. Richardson failed to prove title in herself sufficient to authorize her* to maintain this suit, charging particularly that she failed to prove that she was married to J. D. Richardson, her deceased husband, at the time the land was deeded to him in 1901. Without detailing the evidence, we think it is entirely sufficient to 'prove such fact ; and even if it were not, she would be entitled to maintain the suit as against a trespasser on two other grounds: First, even if the land had been the separate property of her deceased husband, she would have had an interest in the land by inheritance; and second, she was in actual possession of the land as her homestead. A tenant in common may maintain an action to recover the whole of the land from one having no title. Taylor v. Higgins Oil & Fuel Co., Tex.Civ.App., 2 S.W.2d 288, and cases, cited therein. What we said in the Bland case relative to the rights of those in possession to maintain suit in that case is applicable here.

All assignments of error are overruled.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Motion for rehearing overruled per conclusions filed in W. C. Turnbow et al. v. J. F. Bland et al., Tex.Civ.App., 149 S.W. 2d 604.


text:
    TURNBOW et al. v. FREE et al.
    No. 14121.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 21, 1941.
    Rehearing Denied April 4, 1941.
    Gerald C. Mann, Atty. Gen., and R. E. Kepke and James Noel, Asst. Attys. Gen., for appellant State.
    Edwin M. Fulton, of Gilmer, Hendricks Brown and Mike E. Powell, both of Fort Worth, and Trueheart, McMillan & Russell, of San Antonio, for appellant Turn-bow.
    Florence & Florence, of Gilmer, for ap-pellees.
   McDONALD, Chief Justice.

This is a suit in the form of trespass to try title, brought by-J. W. Free and others against W. C. Turnbow, in which the State of Texas intervened as a party defendant. It is one of the four suits mentioned in W. C. Turnbow et al. v. J. F. Bland et al., 149 S.W.2d 604, on this day decided by us.

Except for the questions relating to the judgment in favor of the Humble Oil & Refining Company for the title and possession of an undivided interest in the minerals under the land in question, the controlling facts are the same as those in the Bland case, and the issues are the same. What we said in the Bland case is decisive of this case, except as to the matters hereinafter referred to.

Appellants contend that there is no evidence sufficient to show that the deed to Humble ,Oil & Refining Company conveyed an undivided interest in the minerals under the land involved in this case. J. W. Free and wife, Ida Free, the owners of the fee, pleaded that the Humble Oil & Refining Company was the owner of an undivided interest in the minerals, and have made no complaint of the judgment in favor of the Humble Oil & Refining Company. In line with our holding in the Bland case, the appellants are not in position to complain of the judgment in- this respect.,

All assignments of error are overruled.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Motion for rehearing overruled per conclusions filed in W. C. Turnbow et al. v. J. F. Bland et al., Tex.Civ.App., 149 S.W. 2d 604.


author: PRICE, Chief Justice.

text:
    McDaniel v. Gonzalez.
    No. 4058.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 27, 1941.

      Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellant.
    W. R. Quilliam, of Hebbronville, and Bismark Pope, of Laredo, for appellee.
   PRICE, Chief Justice.

This is an appeal from the District Court of Webb County, from an order overruling defendant’s plea of privilege. The statement of the nature and result of the suit made by the appellant, J. O. McDaniel, is concurred in by the appellee, and we shall substantially adopt same.

Appellee, Joe M. Gonzalez, instituted suit against appellant, J. O. McDaniel, in the 111th District Court of Webb County for damages allegedly resulting from a collision between the vehicle operated by appellee and a truck belonging to appellant on or about the 23rd day of November, 1937, in Webb County, Texas, the suit having been filed on November 18, 1939, citation having been issued thereon on said date, returnable to the January Term, 1940, the same commencing January 1,-1940. Citation was served on November 22, 1939, in Nueces County. On December 28, 1939, prior to the return date on the citation, appellant filed his plea of privilege to be sued in Nueces County. On January 6, 1940, appellee filed controverting affidavit to this plea. The March Term of the District Court of Webb County convened on March 4, 1940,'and adjourned on May 4, 1940. On April 8, 1940, a notation was made upon the controverting affidavit by the Judge, setting a hearing upon the plea of privilege and controverting affidavit for April 26, 1940, at 9:30 A. M. Precept was issued to serve a certified copy of said controverting affidavit and endorsement thereon upon appellant or his attorney of record. The return shows same was served on April 11, 1940. On the 26th day of April, 1940, the trial court, upon hearing of the plea of privilege and the controverting affidavit/entered an order overruling same.

Appellant’s position is that the plea of privilege was not disposed of during the term at which same was filed, and no reason appearing of record for such failure, that the court erred in overruling the plea at a subsequent term.

In support of the assignment, Article 2008, Vernon’s Annotated Civil Statutes, is cited. In short, the position is, by failing to comply with the express provisions of Article 2008, Revised Civil Statutes, appellee waived his right to contest the appellant’s plea of privilege. This position is sustained by a number of authorities, among which are Wilson v. J. I. Case Co., Tex.Civ.App., 139 S.W.2d 611; Alpha Petroleum Co. v. Gray, Tex.Civ.App., 103 S.W.2d 1047; Panther Oil & Grease Mfg. Co, v. Crews, Tex.Civ.App., 124 S.W.2d 436; Humphrey v. Mirike, Tex.Civ.App., 134 S.W.2d 749; American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., Tex.Civ.App., 46 S.W.2d 1054; Hall v. Butereg Co., Inc., Tex.Civ. App., 114 S.W.2d 403; Klapuch v. Dickey, Tex.Civ.App., 91 S.W.2d 484; and White v. White, Tex.Civ.App., 105 S.W.2d 779, 780.

Appellee, on the other hand claims that appellant waived his right to have the court transfer the case to Nueces County by appearing and participating in the hearing on the plea held on the 26th day of April, 1940. The facts in this respect reflect the following: Prior to the time the court acted on the plea of privilege and contest, the appellant filed no written protest against the court proceeding with the hearing on the plea of privilege and contest; there was no motion to strike the controverting affidavit on account of no hearing having been held as prescribed by said Article 2008; no sworn plea to the jurisdiction of the court to pass on the matter. When the time for hearing prescribed by the court by notation on the plea arrived, counsel for the appellant statéd that he objected and excepted to the court holding any hearing in the matter or taking any action other than entering a transfer and an order transferring the cause to Nueces County, stating it was his position that the court had no jurisdiction for any other purpose than to sustain the plea. The court then stated that he was going to overrule the contention of counsel for appellant and hear the pleadings and the evidence in order to determine whether or not the plea of privilege should be sustained.

Whether appellant read his plea to the court does not appear. But the court heard the evidence on the plea and the contest, one witness (the appellee) testifying that counsel for appellant asked him one question on cross-examination.

Now, it is, we think, possible for a defendant, by appearing at a term subsequent to which a plea of privilege should have been disposed of and participating in the hearing without protest, to waive the right to have the cause heard. Griffin v. Linn, Tex.Civ.App., 3 S.W.2d 148; American Fidelity & Casualty Co. v. Jones Transfer & Storage Co., supra.

However, we do not believe that it was necessary to have presented a formal written motion to question the jurisdiction of the court in this respect. Counsel’s verbal protest called the attention of counsel for appellee and the court to the apparent lack of jurisdiction to hear the contest. Had there been an agreement continuing the plea, it would have afforded an opportunity to have called attention to this; had the business of the court prevented the hearing of the plea at the former term, this would have been available. Nothing of the sort appears in this record.

In our opinion, counsel for the defendant, yielding to the almost irresistible impulse to ask appellant if he was not on the wrong side of the road at the time the. accident occurred, is insufficient to constitute a waiver of the right to have this case transferred to Nueces County, especially in view of the fact that counsel had theretofore protested orally against the court hearing the contest of his plea.

It is ordered that the case be reversed and remanded with instructions to change the venue to Nueces County.


author: McCLENDON, Chief Justice.

text:
    FRANCISCO v. BOARD OF DENTAL EXAMINERS et al.
    No. 9127.
    Court of Civil Appeals of Texas. Austin.
    March 5, 1941.
    Rehearing Denied March 19, 1941.

      Clyde Vinson and Hughes, Hardeman & Wilson, all of San Angelo, for appellant.
    Gerald C. Mann, Atty. Gen., and Walter R. Koch, and Zollie C. Steakley, Asst. Attys. Gen., for appellee.
   McCLENDON, Chief Justice.

Suit by Dr. Winn O, Francisco against the Texas State Board of Dental Examiners and its members to require defendants to reinstate plaintiff as a practicing dentist and to cancel an order of the Board which revoked his license on the ground that he had been convicted of forgery in the State of Oklahoma. The appeal is from an interlocutory order denying plaintiff a mandatory temporary injunction reinstating his license pending trial upon the merits of the case.

The order revoking the license was regularly passed without notice under the provision of R.C.S. Art. 4549, as amended in 1935, Acts 44th Leg. p. 606, Ch. 244, § 6, Vernon’s Ann.Civ.St. art. 4549, authorizing the Board to revoke a license upon “proof of conviction of the applicant or holder of a license for a felony involving moral turpitude.”

The provision is attacked as unconstitutional in that it fails to provide for: (a) notice; (b) hearing; (c) court review; (d) appeal to any court; (e) trial by jury; and (f) “notice and hearing before an impartial' board or court, and right of appeal and review.”

The salient provisions of the Article are these:

“The State Board of Dental Examiners shall have authority to suspend or revoke a dental license for any on'e or more of the following causes:
“a. Proof of insanity of the applicant or holder of a license, as adjudged by the regularly constituted authorities.
“b. Proof of conviction of the applicant or holder of a.license for a felony involving moral turpitude.
“The District Courts of the State shall have the authority, after a proper hearing, to revoke or suspend any dental license issued in the State of Texas for any one or more of the following causes

Then follow seven separate grounds for which the district court may suspend or revoke a license.

“Proceedings to suspend or revoke a dental license on account of any one or more of the causes set forth in the preceding Article shall be taken as follows:

“a. Where the cause involves a criminal conviction or a conviction of insanity in some court of competent jurisdiction, the receipt by the Board of a certified copy of the records of the Court of Conviction showing a final conviction shall be sufficient evidence to justify and require such revocation by the State Board of Dental Examiners.”

Then follows a subdivision which provides for trial in the district court, where the grounds are other than in the preceding subdivision a. This subdivision provides for trial as in other civil cases including trial by jury.

In a former opinion we held that the language, conviction of a “felony involving moral turpitude,” meant conviction of such felony under the laws of this state. This was predicated in the main upon the fact that in the same chapter of the statutes, Art. 4545a, Vernon’s Ann.Civ.St. art. 4545a, relating to “Reciprocal arrangements” the applicant is required to make affidavit (inter alia) “that no prosecution ’was then, or is at the time of the application, pending against the applicant, in any State or Federal court for any offense which under the laws of Texas is a felony.”

A re-examination of this question in the light of authorities cited in appel-lees’ motion for rehearing, especially the case of State v. Estes, 130 Tex. 425, 109 S.W.2d 167, leads us to conclude that we were in error in this holding. While that case arose under Art. 311, Vernon’s Ann. Civ.St. Art. 311, relating to revocation of attorneys’ licenses, the reasoning of the opinion is,' we believe, conclusive of this issue. We therefore withdraw our former opinion as it would no longer serve any useful purpose.

Under this view, the above constitutional questions, which we did not decide in our former opinion, become controlling in the appeal.

It is to be observed that in the first quoted provision the Board is given authority to “suspend or revoke” a license; whereas in subdivision a of the second quoted provision under “Proceedings to suspend or revoke” a license, “the receipt by the Board of a certified copy of the records of the Court of Conviction showing a final conviction shall be sufficient evidence to justify and require such revocation by the * * * Board.” (Italics supplied.) There is therefore manifest an irreconcilable conflict in the two provisions; the first vesting in the Board a discretion to suspend or revoke, the latter making revocation mandatory under the same circumstances. There are cogent reasons supporting a resolution of this conflict in favor of the mandatory language of subdivision a in the second quotation, and for our present purposes we will consider the question from that viewpoint.

The general principles which govern the question presented are well settled by adjudications in this state and, at least by the weight of decision in other jurisdictions. An extended review will not be necessary. Only the general effect " of the decisions will be stated with such supporting authority as is deemed essential.

It is of course well settled that the practice of dentistry, relating as it does to the public health, is subject to governmental control. The state therefore has the power to prescribe reasonable regulations for the granting of licenses to practice dentistry, and may delegate to an administrative board or agency the authority to pass upon the qualifications of applicants and to grant or refuse licenses. Likewise the state may, for cause, revoke such licenses, and may also delegate that function to such board or agency.

On the other hand, the practice of dentistry is a lawful profession, and has the same status as any other lawful profession or occupation, in the respect that the right or privilege to engage in it, once it is lawfully acquired, is a right or privilege protected by the due process clauses of the state and federal constitutions. Vernon’s Ann.St.Const. art. 1, § 19; U.S.C.A.Const, amend. 14. Sherman v. State Board of Dental Examiners, Tex.Civ.App., 116 S.W. 2d 843, error refused.

As was said in Waller v. State, Tex.Civ.App., 68 S.W.2d 601, 605, error refused: “The right to practice a profession has been called a property right, but it is more. To obtain a license and proficiency requires the expenditure of money and years of preparation, attended by toil and self-denial. Such right is the capital stock of its possessor from which dividends are expected sufficient to protect him from the infirmity of old age, and to provide his family with the comforts of life. There is moreover a prestige and good name and should be a pride attached to the practice of an honorable profession superior to any material possessions. To cancel a professional license is to take the entire capital stock of its possessor and to leave him in most instances the equivalent of a. bankrupt. But it does much more than this; it takes from him his professional standing and in a manner whatever good-name he has, which leaves him ‘poor indeed.’ ”

It is generally conceded that due process includes reasonable notice and the right to be heard. 9 Tex.Jur. p. 574. .And this is true whether the tribunal exercising jurisdiction over rights or privileges protected by the due process clause, be a judicial, legislative, executive, or administrative one. “The requirements of due process of law extend to every case of the exercise of governmental power.” 12 Am. Jur. p. 283, § 586.

The following from 12 Am.'Jur. p. 307, § 612: “The rule that a hearing before judgment or order is not necessary to due process is especially applicable to proceedings before commissioners and boards, such as public utility commissioners, banking superintendents, etc. There is no violation of due process if provision is made for a trial de novo before a court of the issues passed upon by such a commission,. for a judicial review of the order, even a review by mandamus, provision for suspending or setting aside the order, for a hearing before the order is put into effect,, or for a rehearing upon application.”

However, even where judicial review of an administrative agency’s order is accorded, if no stay of the effect of such, order is provided, and if, meanwhile, irreparable injury would result, subjecting the party affected by the order to criminal prosecution for its violation, due process-is not satisfied. Pacific T. & T. Co. v. Kuykendall, 265 U.S. 196, 44 S.Ct. 553, 68 L.Ed. 975; Porter v. Investors’ Syndicate, 286 U.S. 461, 52 S.Ct. 617, 76 L.Ed. 1226.

Tested by these rules, the procedure provided for the revocation of licenses under the provisions of the statute-in question, clearly does violence to the invoked constitutional guarantees of due-process. No character of notice, hearing or review of the order of revocation is provided. The order operates instanter,,. and the licensee is at once deprived of the right lawfully to practice his profession.

It may be argued that the state had the right to provide that the license should be forfeited, ipso facto, upon conviction of a felony involving moral turpitude, and since-, the Board is not vested with any discretionary powers in the matter, notice and hearing would perform no useful purpose. The complete- answer to this view, if it be otherwise sound, lies in the fact that the-legislature has not provided for an automatic revocation of the license, but requires an order of the Board. Until such order of revocation is passed by the Board the license remains in effect. Before the Board can intelligently or properly act. there are a number of matters it must ascertain. First among these is the identity of the licensee with the defendant in the judgment of conviction. If the conviction be in another jurisdiction, then there are several matters to be ascertained with reference to the law of such jurisdiction. Among these would be the jurisdiction of the convicting court, the sufficiency of the-certified record to show a final conviction in the jurisdiction, the nature of the crime under the law of such jurisdiction with relation to whether it be properly classified, as of the grade of felony and whether it is of such character as to involve moral turpitude. These are matters as to which, we believe the licensee is entitled to a hearing before his license to practice is revoked. Procedure authorizing its summary revocation without such right of notice and hearing constitutes, we believe, a denial of due process under both state and federal constitutions.

Our former judgment reversing the order appealed from and remanding the cause to the trial court with instructions to grant appellant temporary injunctive relief as •prayed for in his petition in that court, is left undisturbed, and the motion for rehearing is overruled.

Reversed and remanded with instructions.

Motion overruled.


author: HALE, Justice.

text:
    CARTER v. IRVINE.
    No. 2304.
    Court of Civil Appeals of Texas. Waco.
    April 3, 1941.
    Rehearing Denied May 15, 1941.
    Davis, Jester & Tyson and Richard & A. P. Mays, all of Corsicana, for appellant.
    Lovett, Lovett & Ralston, of Corsicana, for appellee.
   HALE, Justice.

This suit was instituted by appellant, H. A. Carter, on December 26, 1928, against appellee, B. F. Irvine, to recover the sum of $3,440.85 alleged to be due on a contract of employment. The case has been tried several times. A full statement as to the nature of the suit ’is set forth in a former opinion of this court, which is reported in 77 S.W.2d 247.

On the present trial, the jury found on three special issues as follows, to-wit:

“Issue No. 1: Do you find from a preponderance of the evidence in this case that plaintiff, H. A. Carter, performed the services required of him under his contract with the defendant, B. F. Irvine dated December 14, 1927? Answer: ‘No.’” '
“Issue No. 2: Do you find from a preponderance of the evidence in this case that as a result of the efforts of plaintiff, H. A. Carter, or the efforts of persons employed by him, the said H. A. Carter procured a reduction in the income tax of B. F. Irvine, Robert E. Irvine, Charles F. Irvine and Alice Irvine for the years 1923 and 1924? Answer: ‘No.’ ”
“Issue No. 3: Do you find from a preponderance of the evidence that plaintiff, H. A. Carter, was prevented from performing the services required of him under his contract with defendant, B. F. Irvine, dated December 14, 1927, by the acts or omissions of the defendant, B. F. Irvine, or anyone acting- as his agent, or by his authority? Answer: ‘No.’”

Based upon the foregoing findings, the trial court again rendered judgment that the plaintiff take nothing, and hence this appeal.

By appropriate assignments, appellant asserts that the trial court should have instructed the jury to return their verdict in his favor. The same contention was made on the former appeal. Although these assignments were not discussed in the prior opinion of this court, they were, in effect, overruled and the judgment was reversed, as shown by the opinion, solely because of the error of the court in permitting counsel for appellee to read in evidence a transcript of the testimony given by one Wood-ford on a former trial. On the present trial, the witness Woodford again testified in person.and with that exception the evidence was substantially the same as it was on the last trial.

In passing upon the asserted right of appellant to an instructed verdict, we müst view the evidence and all reasonable inferences to be drawn therefrom in the most favorable light for appellee. Thomas v. Postal Telegraph-Cable Co., Tex.Com.App., 65 S.W.2d 282; City of Houston v. Chapman, 132 Tex. 443, 123 S.W.2d 652. We have carefully reviewed the evidence adduced on the present trial, and regardless of whether this court is or is not bound by its former holding, we are still of the opinion that the evidence was sufficient to tender issues of fact raised by the pleadings as to whether appellant performed any or all of the services required of him under his contract of employment, and therefore these assignments are again overruled.

Appellant complains on this appeal of the action of the trial court in overruling his objections to special issues 1 and 2 in, the charge that “the court therein misplaces the burden of proof upon and to the prejudice of plaintiff,” and that “the submission of issue No. 1 requires of the jury that it shall construe, interpret and determine the legal effect of the contract.” We entertain some doubt as to- whether the objections urged and the assignments presented thereon are sufficiently definite and specific to entitle appellant, under the circumstances, to have this court to pass upon the same. However, we have given due consideration to the matters thus complained of and have reached the conclusion that no reversible error is thereby shown.

It will be noted from the statement set forth in the former opinion of this court above referred to, that appellant alleged in his pleadings the terms of his contract of employment and the extent to which he performed the same, and that the amount of the compensation to be paid to him for his services was contingent upon the results obtained by him under the contract. He introduced evidence tending to support the allegations upon which his asserted cause of action was based. The burden undoubtedly rested upon him to establish by competent evidence the existence of facts necessary to support the recovery sought. A showing of performance of the contract to some extent was therefore a component element of the facts essential to any right of recovery. While in some instances a presumption of the performance of a contract may arise in the absence of any proof to the contrary, we do not think, under the pleadings and evidence in this case, that the burden ever shifted upon appellee to show by a preponderance of the evidence that appellant did not perform the contract sued upon either in whole or to the extent alleged by him. Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593; Barnes v. McCarthy, Tex.Civ.App., 132 S.W. 85; Boaz v. Harris, Tex.Civ. App., 30 S.W.2d 810.

We do not agree that the submission of special issue No. 1 required of the jury that it construe, interpret or determine the legal effect of the contract declared upon. But if so, it does not appear that appellant made such objection to special issue No. 2, or that he requested the trial court to submit any appropriate issue or issues as a basis for determining the existence of facts necessary and essential to support the recovery sought, or the amount thereof, and consequently we can not say, under the record before us, that appellant is in a position to complain of the error, if any, of the trial court in overruling the objection urged.

Finding no reversible error in the case, the judgment of the trial court is affirmed.


author: JACKSON, Chief Justice.

text:
    HEADSTREAM v. MANGUM.
    No. 5271.
    Court of Civil Appeals of Texas. Amarillo.
    March 3, 1941.
    Rehearing Denied April 7, 1941.
    R. L. Graves, of Brownfield, for appellant.
    McWhorter, Howard & Cobb, of Lubbock, for appellee.
   JACKSON, Chief Justice.

On a former appeal from the County Court of Terry County this case was dismissed because appellant failed to file his brief in the time required by law.

On motion for rehearing he attempted to excuse his failure to prosecute .the appeal with diligence and directed our attention to certain matters he claimed constituted fundamental error and which he requested this court to consider and determine. He did not justify his failure to file briefs and prosecute his appeal in his motion for rehearing nor did the. matters he alleged constitute fundamental error.

We are not required when a case is dismissed for want of prosecution to search the record for fundamental error. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811. However, we did in our discretion examine the record and discovered that the case was a suit for damages, originated in the Justice Court, Precinct No. 1, of Terry County, Texas; that there was an attempted appeal to the county court but the record before us failed to show any judgment in the justice court, any appeal bond or any transcript showing the proceedings had in the justice court: This we held to be fundamental error in an opinion handed down June 26, 1939, reported in Tex.Civ.App., 129 S.W.2d 1155, and relying on Perry et al. v. Greer, 110 Tex. 549, 221 S.W. 931, and other authorities therein cited, we reversed the judgment of the county court and remanded the cause for want of jurisdiction and directed the county court to dismiss the case unless the jurisdiction of said court over the appeal of the case from justice court was shown.

No motion for a rehearing was filed by either party after this opinion was announced and no complaint made of such holding or the judgment entered thereon.

On November 1, 1939, the clerk of this court issued a mandate to the County Court of Terry County advising the judge thereof that the judgment of the county court had been reversed and the cause remanded and directed that further proceedings be had in accordance with the opinion of this court, a certified copy of which was attached to the mandate. Among other directions the trial court was instructed that unless the jurisdiction of the county court o'ver the appeal from the judgment rendered in the justice court was shown the case should be dismissed. „

After the mandate was returned the plaintiff below, W. R. Mangum, on May 20, 1940, filed a motion in the county court in which he sought to have the judgment rendered in his favor for $125 on February 25, 1938, on the verdict of a jury and from which the appeal was prosecuted, reinstated in accordance with the mandate of this court.

On the same day the court rendered a judgment on said motion and after reciting that both the plaintiff and defendant appeared he heard the evidence and argument of counsel, ascertained that a transcript and proper appeal bond was filed and an appeal properly prosecuted from justice court and that at the time the county court rendered judgment oil February 25, 1938, such court had appellate jurisdiction of such appeal and that the Court of Civil Appeals had dismissed the. appeal on its merits because it did not appear that said court had jurisdiction. He therefore concluded that the cause should be finally adjudged on its merits; found he had jurisdiction to try the cause and enter the judgment theretofore rendered; granted the plaintiff’s motion and reinstated and affirmed the judgment theretofore rendered.

On May 22, 1940, the defendant, Rex Headstream, filed a motion requesting the court to set aside the judgment theretofore entered on May 20th and grant him a rehearing in accordance with the mandate of the Court of Civil Appeals; sets out that the suit originated in the Justice Court of Precinct No. 1 in Terry County; that a judgment was obtained therein; that an appeal was prosecuted from such judgment to the county court in which judgment was rendered for the plaintiff for the sum of $125; that an appeal was prosecuted to the Court of Civil Appeals and the judgment of the county court reversed and the cause remanded for want of jurisdiction with instruction to the court to dismiss the case unless the the'jurisdiction of the county ■court was shown; that because of the want of jurisdiction the Court of Civil Appeals did not pass or attempt to pass upon the merits of the case on the numerous legal questions involved in the merits, for which reason he was entitled to a new trial in the county 'court.

This motion was overruled and from such action and the judgment of the court reinstating the judgment rendered in the trial court on February 25, 1938, this appeal is prosecuted.

The record discloses that the former trial was had before a jury and upon findings on special issues W. R. Mangum obtained a judgment against Rex Headstream on February 25, 1938, for damages in the sum of $125 occasioned by the negligence of the defendant resulting in injuries to plaintiff’s wagon and team.

The record shows that no testimony was heard on plaintiff’s motion to reinstate such judgment except the transcript and appeal bond from the justice court which the judge found was sufficient to give the county court' appellate jurisdiction of the judgment in justice court.

The only question presented’ to this court for determination is whether or not the trial court erred in reinstating and affirming the judgment rendered on February 25, 1938, without hearing any testimony* except on the question of jurisdiction and refusing appellant a new trial on the merits.

We did not pass on the merits of the controversy in the former appeal. For want of jurisdiction we reversed the judgment of the trial court and remanded the cause to the County Court of Terry County with directions that such court dismiss the case unless its appellate jurisdiction was made to appear.

The trial court obviously understood that the judgment was reversed and set aside, otherwise, there would have been no necessity of reinstating and in all things affirming said judgment. We directed the trial court to ascertain whether or not it had acquired appellate jurisdiction over the judgment in justice court and if it did not to dismiss the case but, manifestly, we intended if the court determined it did have appellate jurisdiction Rex Headstream, the appellant here, was entitled to a new trial in the county court on the merits. 3 Tex. Jur. 1313.

In 5 C.J.S., Appeal and Error, 1547,'§ 1986, the author says:

“Whether the decision of the appellate court necessitates a new trial after remand depends on the intention of the appellate court, any doubt as to which is usually resolved in favor of a new trial.
“No doubt exists as to the intention of the appellate court if it has specifically ordered a new trial; but even without such specific order it is usually held that a new trial is intended and necessary where the case has been reversed and remanded generally without directions to the contrary. This latter is particularly true where the reversal is for an error anterior to the verdict, error in directing a nonsuit, error in refusing to grant a new trial, or where the facts are disputed or were not brought up and passed on by the appellate court.”

In Fidelity Lloyds of America v. Gossett, Judge et ah, 282 S.W. 841, 843, the Court of Civil Appeals of Fort Worth, in passing upon the precise question presented to us, says: “In our opinion on the former hearing, we reversed the judgment below and remanded the cause by reason of the failure of the transcript to show that the county court had jurisdiction. There was no transcript of the record of the justice court in the record before us at that time, and, under the authority of the decision in Perry v. Greer, by the Supreme Court, 110 Tex. 549, 221 S.W. 931, and by this court in 223 S.W. 714, it became our duty to reverse the judgment and remand the cause for a new trial, with directions to the county court to dismiss the case from 'the docket, unless the .jurisdictional facts be legally shown. The rights of the relator and Sawyer on the appeal were not determined by this court in its judgment of May 9, 1925. The effect of this court’s decision then was that the record presented nothing for determination by it on the merits because no jurisdiction in the county court was disclosed by the record. In the absence of such a determination of the relator’s rights by this court, it is clearly our duty to remand the cause to the trial court, with instructions to dismiss the cause if the jurisdictional facts did not appear, and, in case said facts did appear to try the cause again. Loeper v. Loeper, 56 Wash. 647, 106 P. 183.”

While not authority for the question here involved, we cite the holding in Farmers’ Mill & Elevator Co. v. Hodges et al., Tex.Com.App., 260 S.W. 166.

The judgment is reversed and the cause remanded.


author: TIREY, Justice.

text:
    WESTERN UNION TELEGRAPH CO. v. STAMPS et al.
    No. 2311.
    Court of Civil Appeals of Texas. Waco.
    March 20, 1941.
    Ñaman, Howell & Boswell, of Waco, and Francis R. Stark, ,of New York City, for appellant.
    Lane & Grace, of Hearne, for appellees.
   TIREY, Justice.

Ida Stamps, joined by her husband, brought this suit to recover damages for mental anguish suffered by her by reason of the failure of the Telegraph Company-to deliver promptly to her a message concerning the illness of her aunt. She alleged that such failure was negligence and that in consequence thereof she was deprived of the privilege and right of being with her aunt during her dying hours and of aiding her and comforting her in her extremity, and was denied the privilege of seeing her aunt alive, and as a result thereof, she suffered great disappointment, grief, mental pain, and anguish. The case was tried to the court without a jury and damages were awarded to appellees against appellant for the sum of $150. Appellant has appealed.

Appellant’s first assignment of error is: “The trial court erred in rendering judgment against the defendant herein, for the reason that the undisputed evidence shows that the sole cause of the delay in the delivery of the message in question was due to an error or mistake made by the operator of the defendant at a time when he was acting as the agent of the sender of the message and not as the agent of the defendant Telegraph Company.” This assignment must be sustained and the application of this rule of law will require that this cause be reversed and rendered.

The material facts are not in dispute. On the morning of February 19, 1939, Ida Stamps, who resided in Dallas, Texas, wired Tom Sims at Hearne, Texas, as follows : “If Auntie needs me answer at once.” On the same day, Tom Sims answered the message as follows: “Come- at once.” When Tom Sims came to the office of the Telegraph Company the first time to send a reply message, he advised the young man with whom he talked of the serious illness of his wife and stated to him that he wanted to send a message to Ida Stamps “to come at once my wife was passing out; seemed to be passing out and I wanted her to see her living;” that on this first trip he found that he did not have the correct address of Ida Stamps and he went back home to obtain it; that when Tom Sims came back the second time he talked with Joe Wilson, who was an assistant operator of the Telegraph Company. Considering Tom Sims’ testimony in the light most favorable to appellees, he testified substantially that he had the same conversation with Mr. Wilson with reference to the sending of the message and the condition of his wife that he had with the young man with whom he first talked; and he further testified positively that he asked the operator to write the message out for him; that the agent wrote the message for him and read it back to him and that “he didn’t read it to me ‘Fort Worth.’ If he had read ‘Fort Worth’ I would have held him up. It was Dallas, Texas.” Ida Stamps lived at 3503 Worth Street, Dallas, Texas. The wire was addressed to her at 3503 Worth Street, Fort Worth, Texas. The message was transmitted at 5:24 P. M., February 19th. The Telegraph Company’s office at Hearne closed at 6 P. M. on the same day and did not re-open until 8 A. M. of the following day. The next morning the operator at Hearne received a service message from the Forth Worth office stating that there was no such address in Fort Worth. The operator at Hearne immediately tried to locate Tom Sims but was unable to do so. He thereafter made further inquiry, and, through another party, ascertained that the wire should have gone to Dallas. This information was received about 9:30 A. M., February 20th, and the operator immediately had the Fort Worth office forward the message to Dallas to the same street address. Ida Stamps was not at home when the wire was forwarded but was in another part of the city at work. She received the message about 11:30 A. M., February 20th. The last morning conveyance out of Dallas for Hearne left between nine and ten o’clock. Ida Stamps immediately made her arrangements to leave for Hearne and caught the 3:35 P. M., Greyhound bus, arriving in Hearne that night. Her aunt died about 4:10 P. M., on February 20th. The undisputed evidence shows that the failure to deliver the telegram promptly was due solely to the mistake made in sending if to Fort Worth instead of Dallas.

Our Supreme Court, in the early case of Western Union Telegraph Co. v. Edsall, 63 Tex. 668, announced the rule that when the operator, at the request of the sender, writes out the message for the sender, he is acting as an agent for the sender. The court said: “The operator in the preparation of the message was acting for the ap-pellee, and not the company. True, he was the agent of the company to receive and forward messages, but not to write messages for others. Now when appellee specially requested the operator to do this work for him, the operator in respect to that particular matter was as much the agent of the appellee as if he had been a stranger to both parties.” Thereafter, our Supreme Court, in the case of Western Union Telegraph Co. v. Foster, 64 Tex. 220, 53 Am. Rep. 754, in discussing the same question, said, in part: “Had the company in any way ordered its servant (a clerk) to do this for the plaintiff? There is no proof that it had. Then the servant was acting beyond the scope of his duty, and it makes no difference whether, in making the correction, he acted sua sponte or at the request of appellee.” Our Supreme Court has uniformly adhered to and followed the rule announced in the foregoing cases. Western Union Telegraph Co. v. Holcomb, Tex.Com.App., 210 S.W. 509, point 1, page 510 (opinion adopted by S. Ct.).

Other assignments are raised but the sustaining of the first assignment disposes of this cause and it would serve no useful purpose to discuss them.

The judgment of the trial court is reversed and judgment is here rendered in favor of appellant.


author: BLAIR, Justice.

text:
    IRION COUNTY et al. v. MAYER et al.
    No. 9146.
    Court of Civil Appeals of Texas. Austin.
    March 26, 1941.
    Hughes, Hardeman & Wilson, of San Angelo, for appellants.
    Upton, Upton & Baker, of San Angelo, for appellees.
   BLAIR, Justice.

This is an appeal from an order granting a temporary injunction enjoining the Commissioners Court of Irion County and its members from laying out, establishing, and constructing a second-class public road from a certain point in the south line of the Bennett Survey along the Irion County line to the San Angelo-Arden public road over the land of appellee Abe Mayer.

The commissioners courts of Irion and Tom Green Counties undertook to establish a different road across the county line, each to establish the portion in its respective county, the road to begin at a point on the south line of the Bennett Survey and thence to the San Angelo-Arden road, but not along the county line. Tom Green County Commissioners Court met with difficulty in obtaining right-of-way, and delay was had in opening the proposed road; and the Commissioners Court of Irion County,-of its own motion, proceeded to open the road along its county line, which occasioned the suit in question.

The record of the Commissioners Court of Irion County shows a petition was addressed to the Commissioners Court of Irion County, dated October 16, 1939, and filed May 11, 1940, signed by the adequate number of freeholders, requesting that a road be established to begin at a point in the Irion-Tom Green County line 40 feet west of the northeast corner of Irion County, on the Rodriquez Survey, and to terminate at a point in said Irion-Tom Green County line at a point in the south line of the Bennett Survey. This terminating point was to connect with a road applied for by a petition of freeholders of Tom Green County and thence to the San Angelo-Arden public road, but not along the county line.

On June 10, 1940, the Commissioners Court of Irion County entered its order, reciting the filing of the foregoing petition, found that it was advisable for said court to confer with the Commissioners Court of Tom Green County; and on June 11, 1940, the Irion County Court appointed a jury of view to lay out the road described and to assess the damages incident thereto, and instructed it to cooperate with the jury of view of Tom Green County. On August 1'2, 1940, the Commissioners Court of Irion County directed the jury of view to make and report its findings; and on that day the jury of view reported that no agreement could be reached with Tom Green County, and' recommended that a second-class road be established along the county line, if the contemplated agreed road could not be established. Said Commissioners Court then received and approved the report of the jury of view on August 12, 1940, and ordered that the money to pay- damages be set aside in accordance with the report; but further ordered that the jury of view be not discharged but recessed for future service in this behalf should their service be again required. Nothing further was done, and on Monday, September 9, 1940, the Commissioners Court of Irion County, of its own motion, entered its order finding it necessary to establish a new road 60 feet wide, beginning at the certain point in the south line of the Bennett Survey and continuing along the county line to its intersection with the Sán Angelo-Arden public road, over and across appellee’s land. The court appointed a jury of view to establish the road and to assess damages; and on October 14, 1940, the jury of view reported, recommending the establishment of said road and assessing appellee’s damages; and said court on October 14, 1940, received the report of the jury of view, and discharged the jury; and on the same date ordered a conference with the Commissioners Court of Tom Green County. By order of October 19, 1940, the Commissioners Court of Irion County recited that the conference referred to in the order of October 14, 1940, had been held and that no agreement could be reached; and that the court then took up the report of the jury of view, dated October 14, 1940, adopted and approved same, directed the payment of damages to appellee as assessed, and that the commissioner of the precinct in which the road was situated should immediately begin construction of the road, and work was immediately begun, and Ihen restrained by the order in suit.

Under these records of the Commissioners Court of Irion County, appellee contends that the opening of the road from the south line of the Bennett Survey along the Irion County line to the San Angelo-Arden road was attempted to be predicated upon the petition to open the agreed road across the Torn Green-Irion County line, and was void because the public was not given notice thereof by posting notices as required by Art. 6705, R.S.1925. This is the only defense of the order granting the temporary injunction briefed by appellee,

We regard the record of the proceedings before the Commissioners Court of Irion County as showing that it did not finally act upon and establish the road called for in the petition of the freeholders, dated October 16, 1939, and filed May 11,. 1940. All proceedings under this petition were in contemplation of an agreement of the two counties to eventually establish a road beginning at the point in the south line of the Bennett Survey, thence to the San Angelo-Arden public road, but not along the county line. The contemplated agreement failed to materialize, and all the-Commissioners Court of Irion County did-towards establishing the proposed road was to accept and approve the report of the jury of view recommending the establishment of a road along the county line, if the road contemplated by an agreement could not be established. Nothing further was done, and the Commissioners Court of Irion County then proceeded, as it was authorized to do under the provisions of Arts. 6703 and 6706 to 6710, both inclusive, R.S.1925, to establish of its own motion the road in question along the county line.

A completely analogous question, was decided in the case of Parkey v. Archer County, Tex.Civ.App., 61 S.W.2d 175, wherein it is held that a commissioners court may abandon a statutory method it is pursuing to establish a public road, and then pursue any other method authorized by statutes. San Patricio County v. Maxwell, Tex.Civ.App., 56 S.W.2d 295. We regard these decisions as sustaining our view herein.

The law is also settled that a commissioners court may, of its own motion,, establish a new road under the method provided by the articles of the statute last above cited. Whaley Farm Corp. v. Robinson, 120 Tex. 633, 37 S.W.2d 714, 40 S.W.2d 52.

It is settled law that in a proceeding to open a second-class road on the application or petition of freeholders, the posting of the 20-day notices required by Art. 6705 is jurisdictional. Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162. But the formal posting of notices required by this statute is not required when the commissioners court proceeds, on its own motion, to establish a road under the provisions of Arts. 6703 and 6706 to 6710, both inclusive. Meyer v. Galveston, H. & S. A. R. Co., Tex.Civ.App., 30 S.W.2d 936.

A suit to enjoin the establishment or opening of a public road will not lie unless the proceedings to establish or open the road are void, or where the establishment of a particular road shows an abuse of the discretionary power of the commissioners court. 21 Tex.Jur. § 92. Neither of these grounds is shown in the instant case.

In accordance with our above conclusions, the order appealed from1 is set aside and the temporary injunction is dissolved.

Order appealed from set aside; temporary injunction dissolved.