This suit was brought by appellants to recover a strip of land forty feet wide, now used by the county of Gonzales for a public road, and extending diagonally across the west half of a 12-acre lot known as lot 5 in range 6 in the outer town of Gonzales. .
The cause was tried by the judge without a jury, and his findings and the evidence show, among other things, the following facts:
In the year 1878 the land in controversy belonged to a Mrs. Rogan and was situated withiu the limits of Gonzales, a city then having a special charter giving it control over its streets and being governed by a board consisting of a mayor and aldermen.
In the year last named the County Commissioners Court of Gonzales County, proceeding under the Toad law, made an order establishing a second. class road over the land, and subsequently it caused the same to be worked as a public road. The council of the city of Gonzales in the year 1882 passed an ordinance adopting said road as laid out by the County Commissioners Court.
The limits of the city corporation were contracted in the year 1883 so that they did not after that time include the land in controversy. The land was treated as a public road and worked as such without objection from its owner until she sold and conveyed it to appellants in the year 1887. Mrs. Rogan was a married woman during the entire period.
When appellants purchased it they at once improved the land and planted a crop upon it.
By direction of the County Commissioners Court their fence was removed for the purpose of reopening the road.
In the view taken by us of the case there are a number of questions raised by the assignment of errors that it does not become necessary for us to consider.
Without intending to decide that if the County Commissioners Court could have rightfully .exercised jurisdiction to establish the road the action taken in this instance would have been sufficient for that purpose, we think it must be held to have been without jurisdiction to do so in the year 1878, because the land was then included within the corporate limits of the city, and its proceedings at that time must be treated as having no legal effect. The State v. Jones, 18 Texas, 874.
The circumstances under which the County Commissioners Court may assume authority over the streets of incorporated cities and control them as public roads were defined for the first .time by the Act of the Legislature of March 14, 1885. Sayles’ Civ. Stats., art. 4359a.
It is needless to say that the title of the owner of the property was not *223affected by the mere ratification or adoption, in the year 1882, by the city council of the void acts of the County Commissioners Court,
Delivered January 9, 1891.It is sufficient to say that while the city by a proper proceeding could, under the Constitution and laws, have condemned the property for street purposes previous to its exclusion from the city in the year 1883, and the county could have caused it to be condemned for road purposes subsequent to said date, no attempt to do so was made by either.
The coverture of Mrs. Bogan relieves the case of any question about the statute of limitations.
The want of jurisdiction of the County Commissioners Court removes questions which would otherwise have existed with regard to the necessity cf serving the owner with notice of the proceedings to establish a road, - and of the effect of her acquiescence in the proceedings after being notified of them, notwithstanding no compensation was awarded her.
The title of Mrs. Bogan to the property not having been in any manner impaired by the unauthorized proceedings^ that acquired by her vendees was equally good, and their expulsion from the land must be held to have been an unwarranted trespass, and they may properly maintain this suit for the recovery of its possession.
With regard to the claim for damages, we do not think it proper to comment further than to say that we think it subject to the requirement of article 677 of the Bevised Statutes, and that in the absence of its having been presented to the County Commissioners Court for allowance the suit in that respect can not be maintained.
The judgment is reversed and. the cause is remanded..
Reversed and remanded.