On Motion for Rehearing. Appellant requests us to file conclusions of fact. This case was disposed of principally on the action of the trial court in sustaining exception to paragraph 5 of appellant's answer. It was not discussed as *Page 702 one of fact, but we will comply with the request, in so far as we can.
First. We adopt the conclusions of fact made and filed by the trial court and brought up in the transcript. Second. We are requested in the first paragraph of the motion to find whether appellee agreed in writing that said commissioners need not serve him with process and might proceed to condemn the right of way through his land for the defendant. We find no evidence of any such written agreement in the record. We find that appellee states he was "subpœnaed" before the "board of condemnation," and that he then appeared before them and "prosecuted that suit," and waited for the termination of the same. His testimony is all there is in the record on that question. Third. Appellee protested vigorously to appellant going on his land. Appellant's employé warned him he had better investigate "before trying to run the men off." After talking with appellant's attorney in the right of way proceeding, he permitted the work to proceed, "as he did not see that he could do more" at that time. Fourth. The evidence does not show that he knew under what authority the men acting as commissioners purported to be acting. There is no evidence that he agreed to them as commissioners to condemn his land, or that the district judge should appoint them, or that he knew they were so appointed. Fifth. He knew appellant went on his land, graded and completed its road across it, and operated trains over the road so constructed. This was done without his consent, against his wishes, and over his protest
We do not think we are in conflict with the authorities of this state holding that the owner of land waives his right thereto who appears before a regularly constituted board of commissioners, duly appointed under the statute, as asserted by counsel for appellant. We hold that the parties acting under the appointment of the district judge in this case was not such a board of commissioners. Counsel assumes the very thing at issue; that is, whether the parties so acting were under the law a board of commissioners. This is the fundamental question in the case and an important one upon which rests the substantial rights of the parties to this suit. We think, unless it was a tribunal recognized by law from the decrees of which an appeal will lie, their action might result in an injustice to the owner of the land.
The law gives the owner the right of appeal to the courts to correct the judgment of a regular board of commissioners. Judge Williams held in Nalle v. City of Austin, 101 Tex. 48, 104 S.W. 1050, that the judgment by the county court could not be appealed from in the case where the charter of the city of Austin authorized the commissioners to file their report with that court. A trial was had in the county court and judgment rendered making such report the judgment of the court. That case, at least, had some law for such a judgment. The Supreme Court said it was not a court, although entered by the county court, and an appeal from such judgment would not lie. From Baker v. Chisholm, 3 Tex. 157, it has been the holding of the Texas courts that an appeal cannot confer upon appellate courts jurisdiction which the court a quo did not possess. Wadsworth v. Chick, 55 Tex. 241.
The cases cited by appellant are, as a rule, cases from the judgment of legally created courts, recognized as such by law. An appeal can be perfected therefrom and the rights of the parties fully and finally determined. There is reason and authority for holding, when a judge is selected, in a way not regular, to occupy a regularly constituted court under the Constitution and laws, that he will be regarded as a de facto officer; or when the parties may agree to a judge, if no formal agreement is made, or if they treat the judge so acting as one duly selected, they may by their acts be held to have agreed to him as such. But in this case the appellant alone had the right to condemn the land. It alone could institute proceedings and bring into existence the tribunal. The landowner is summarily compelled to surrender his land, and his only right is to ask that such tribunal be established that he may properly prosecute his claim and in which he can protect his interest. Hays v. Railway Co., 62 Tex. 400. His appearance is not a waiver of his right to call in question the judgment of such illegal tribunal in the only way granted him by law. Appellant alleges appellee was dissatisfied with the action of the commissioners and attempted to appeal, but failed in his appeal; doubtless for the good and sufficient reason he could not appeal from the judgment of a tribunal unknown to the law.
It is alleged that this judgment was res adjudicata. This it could not be, if the tribunal rendering it was unknown to the law; such judgment estops no one. The owner of land has the right to have his land condemned by authorities who have the power to summons and swear witnesses. These parties, so acting in this case, had no such power under article 4458. An indictment for perjury could not be sustained by an oath administered by them. The case between these parties, reported in (Sup.) 133 S.W. 1043, clearly illustrates the principle. If the district court could not render judgment in condemnation proceedings because the statute did not confer upon it jurisdiction, then for the same reason it could not institute proceedings for the condemnation of the land. The fact that the company used the land by running its road over appellee's land did not affect his right. If he was chargeable with full knowledge of the claim made of the condemnation, he knew it was *Page 703 without foundation in law and that he could recover possession. Hays v. Railway Co., supra. In so far as the facts go in this case, it is shown appellee did not acquiesce in the acts of appellant or the parties acting as commissioners. While he may have appeared before them, and if he had agreed in specific terms that they were a legally constituted body, authorized under the law to condemn land, such would not make them so.
Parties by agreement cannot confer jurisdiction on courts or create courts. Tribunals and courts must exist by virtue of the law authorizing them. In order to take his land, appellant had to do so by law, or there must have been such an agreement as will give appellant the right to enforce it in court.
The fact that he may have believed they were acting under the law and tried to proceed thereafter under the law ought not operate as a waiver or as an estoppel. In order to operate as a waiver it should be alleged that he knew of the illegal appointment, and, thus knowing, agreed to accept their decision as final, and agreed to waive their appointment by the county judge, and agreed that the district judge should select them. To estop him from attacking the award, it should be shown that by his acts and conduct he induced appellant to apply to the district judge to select men to settle the dispute, and induced appellant to believe he would accept the award as final. This, as clearly appears from the pleadings, was not the case. It is alleged appellant proceeded to condemn under the law, and upon its own volition applied to the district judge without requesting an agreement to have commissioners so appointed. The burden was clearly upon appellant to show a condemnation under the law or that there was such an agreement with appellee as can be enforced. We are fully persuaded the judgment of the district court was correct and that the case has been correctly disposed of.
The motion is therefore overruled.
HENDRICKS, J., not sitting.