Appellant was convicted of obstructing a public road. This road, known as the "Anson and Roby Road," was laid out in 1883 by order of the commissioners court, and worked since 1884 as a public road. The road ran across what is known as the "Harrison County School Land," and at the time of laying out the road belonged to that county. The order establishing the road failed to show that Harrison County had been allowed or paid damages for the land taken, or had appeared before the jury of review, or had consented that the land should be so taken. The road was worked until 1889, when, at a point one mile inside the boundary of said Harrison County land, a deflection was made in said road from where it originally ran. From that point the new road made by the deflection was worked as a part of the public road. It thus continued until October, 1898, when Coats, who had in September previous leased this land, had appellant and others to inclose it, and place a gate across the road at the point where it entered said land. Several contentions are made, the principal of which is that this is not a public road, within the contemplation of law. We do not agree with this. The fact that the order of court establishing the road failed to recite that Harrison County had been notified of the laying out of the road, and had not been tendered damages by way of compensation for the land taken, does not alter this view, so far as appellant is concerned. He had no interest in the question of damages incident to taking the land for public use, and therefore could not set it up in defense of this prosecution. At the time of his lease the road was on the ground, and had been for practically fifteen years. He leased the land with this incumbrance upon it, and, so far as he is concerned, it is wholly immaterial whether or not Harrison County had been paid for the land. Dodson v. State, (Texas Crim. App.), 49 S.W. Rep., 78. But, had he been the owner, under the record before us he could not obstruct the road, because damages had not been originally allowed. As was said in Crouch v. State, 39 Texas Criminal Reports, 148: "After the road was established, although no damages were allowed him by the reviewers or *Page 437 by the commissioners court, he could not disregard their order, although the Constitution provides that no citizen's land shall be taken by the State for public use without adequate compensation. He was entitled to compensation, but he should have procured his rights before the courts. The order establishing the road was obligatory upon him. He could not disregard it, and his obstructing by fastening the gate with wire was an unlawful act on his part. We further hold that the fact of his fastening up said gate after he knew it had been used as a public road of the third class was, under the circumstances, willful, and the proof offered by him that he had the advice of his attorneys to the effect that the order was void would not avail him as tending to show his act was not willfully done." He took the land as he found it, incumbered with the road. It did not interfere with any right he had in the land, for it was placed there before he obtained possession. His remedy, if any, was at the hands of the courts.
It is also contended the road was not a public one by reason of the change made. If in fact the road was changed from the point of entrance into said land in 1889, it was utterly disregarded both by the commissioners court and by the road overseers in working the road, for it is shown by the evidence that the road was worked as originally laid out from Anson to a point one mile inside said land; and the proof is without contradiction that this road was worked from 1884 or 1885 to the time of its obstruction, in October, 1898, that hands were regularly apportioned to it, and the road was recognized by the commissioners court as well as the overseers in working it, and the road at the point of obstruction was traveled during the entire time.
Appellant contends because he had taken advice of counsel to the effect that this road was not a legal one, exonerates him from the charge of willfulness. This question was decided adversely to his contention in Crouch's case, supra. The other contentions urged by appellant are dependent upon those discussed above, and it is unnecessary to review them. The judgment is affirmed.
Affirmed.