A trial has been set by Judge Jason Cashon in regards to County Road 180, after day two of a temporary restraining order hearing Tuesday, Nov. 14.
Attorney Shay Isham is representing Jay Mills Contracting, Inc. while Attorney Ryan Taylor is representing William Pace. Taylor is also representing several other land owners along CR 180.
The property in question is a 96-acre tract of land that was purchased by Jay Mills Contracting, Inc. in August 2023 next to CR 180. Based on a survey prepared by Zane Griffin, Mills’ grandson, the piece of property would only be 96 acres unless it included a portion of County Road 180. Jay Mills Contracting, Inc. undertook moving the road to get the “missing acreage.”
A temporary injunction hearing was started on Nov. 2 and continued until Nov. 14 with the temporary restraining order for an additional 16 days.
On the second day of the hearing, Isham called two witnesses to the stand, Zane Griffin, who surveyed the property in question and who is Jay Mills’ grandson, and Precinct 3 County Commissioner Joe Brown.
Griffin, who is a registered professional land surveyor, testified that he had surveyed several properties along CR 180 for a variety of different individuals including Steve and Lanette McCoy, who eventually sold property along the road to Jay Mills Contracting. Griffin explained that he completed surveying on three tracts of land within the property on CR 180 in late April 2022 and when the property had not sold a year later, he was asked to come back.
“I was not paid through Jay Mills Contracting,” he explained, and later stated that he did not know Jay Mills Contracting were the buyers of the property until the survey was complete.
Griffin said he was paid by Jay Mills Contracting for one hour of staking a property line.
The surveyor explained that he came to the conclusion that the road was in the incorrect spot after locating monument corners described in the deed, one of which was underneath asphalt.
“All of them were in agreement with the monuments where I established the line,” he said. “I believe the calledfor monuments were found and so we utilized them.”
With a 72 or 78-foot gap in question, Isham asked Griffin about prorating that difference between the properties along CR 180. Surveyor Kenneth Leatherwood had previously testified that the distance should be prorated because in this case there was not a senior and junior property, rather they were all equal because of being divided at the same time on the subdivision map.
“I do not believe prorating is the right decision in this case,” Griffin said. “I believe it to the solution of last resort.”
One of the calls that Griffin located on William Pace’s southeast corner was under asphalt 24 inches deep. Isham asked Griffin if he believed the new road was in the correct place, and he answered that he did.
On cross examination, Taylor asked Griffin who had paid for the surveying work and he stated he had yet to be paid for the work done, though Sam Byrd was the realtor when it came to Jay Mills Contracting buying the property. Byrd was the person who requested the survey be done, Griffin explained, and Steve and Lanette McCoy were the clients.
Taylor questioned if there was anything to do with ethics in becoming a registered professional surveyor and Griffin answered that though there are ethical guidelines, there is nothing in the law.
“I was not aware that Jay Mills Contracting was purchasing the property. I do not have anything to do with the day-to-day operation,” Griffin said.
During Taylor’s questioning, Griffin stated though the deed says to the edge of a 30 foot road, that does not necessarily mean to where the pavement is.
“That’s not the correct location of the road, in my opinion,” Griffin said. “I give my opinion based on evidence on the ground. I don’t determine boundaries I show evidence of boundaries.”
After a break, Isham then called Commissioner Joe Brown to the stand since CR 180 falls within his precinct. Brown stated he had multiple conversations with Jay Mills who told him that he believed CR 180 was outside of the right-ofway.
Brown stated he was there when the new property line was staked and also spoke to a couple of the neighbors along CR 180. He also said he spoke with the county attorney and checked with Bob Bass, with Alice, Bass and McGee, a law firm that aids Texas counties.
Under local government code, a commissioner can change a road to straighten it or make it safer.
“I believe it did make it straighter,” Brown said. “I had the authority to have the county road moved. I believe the road is now in the county right-of-way.”
After seeking legal advice along with looking at Google Earth and the property lines on the Erath County Appraisal District maps online, Brown told Jay Mills Contracting it was OK to move forward with the work.
Brown testified that there was no kind of meeting with the commissioners in court and an official agenda item did not appear until Oct. 10. The court was informed of some of the problems in the new business portion of the commissioners court meeting.
Taylor stated in his cross examination that on any county business, a consensus must be voted on at a public meeting.
“To bind the county on any action [it] has to be done at a commissioners court meeting,” Taylor said. “There was no commissioners court action and no contract either.”
Taylor played a video of the Oct. 10 commissioners court meeting where the subject of moving CR 180 came up in the new business portion of the meeting. Brown told the commissioners that Jay Mills Contracting was agreeing to move the road at no cost to the county, about a $90,000 savings.
Throughout the entire issue, Brown said he has questioned who moved the county road to begin with because based off of the 1800s subdivision map, the road should have been straight and in the county right-of-way, but it wasn’t.
“There’s going to be someone mad before this is all over with,” Brown said, in the Oct. 10 video. “This is the problem when you don’t have surveys every time a property is transferred.”
In his testimony, Brown stated that on three separate occasions, he had taken County Attorney Lisa Pence, Precinct 4 County Commissioner Jim Buck and Precinct 1 County Commissioner Dee Stephens out to see CR 180 and get their opinions.
“Are you familiar with the term daisy chain?,” Taylor asked. “It’s when one commissioner will get feedback and then pass it to the next, until effectively you’ve had an illegal meeting.”
When Brown answered in the affirmative that he knew what that was, just not the term, Judge Cashon interjected and told Brown that he did have the right to take the fifth amendment on grounds of not incriminating himself and also had the right to seek counsel.
“No one complained before Jay Mills bought the property, did they?” Taylor questioned.
Brown testified that during the new county road being built, the Israel family lost approximately 6-8 inches of land and the Pace’s lost some land after recent rains because the proper slope had not been put into the road project.
“We’re looking at putting in a retaining wall, but nothing has been decided yet,” Brown said.
“Wouldn’t it have been simpler just to tell Jay Mills to leave the damn road alone?” Taylor asked and Brown answered in the affirmative.
Surveyor Kenneth Leatherwood was recalled to the stand and he stated that Griffin’s corners did not hit the land to the north and that his measurements were off.
Clarifying the definition of a road, Leatherwood stated that a road means a well-traveled path and in this case, the east line would be the gravel or the fence line at the most.
“The southeast and southwest corners can be established from the 1893 plat. If there’s a problem, you would prorate 15 feet on each property,” Leatherwood said. He stated that if there was an overlap, it would be appropriate to rectify it by prorating.
Throughout both hearings, different witnesses have testified that work has continued on the project despite the temporary restraining order being in place and then renewed by Judge Cashon on Nov. 2 for an additional 16 days.
Wimberley stated that she had witnessed Mills painting the fence after the Nov. 2 hearing.
In closing arguments, Isham stated that the line in the original subdivision plat established the road.
“If anybody did take anyone’s land it was at the direction of Erath County,” he said.
Taylor stated in his closing arguments that Jay Mills Contracting Inc. had thumbed his nose at the temporary restraining order.
“I’ve never seen a case where the county commissioner gave a private citizen permission to tear up a country road,” Taylor said. “If they built Harbin street as fast as they built this road, the citizens would be very happy. Some people think they are above the law.”
In Cashon’s ruling, he entered a temporary injunction prohibiting any more work being done to the new CR 180.
“Nothing will change til further ordered. Not painting - not anything!” he said.
Cashon said that the plaintiffs had suffered irreparable damages and that there was a probable right of recovery. Cashon set the date of the trial for Feb. 26, 2024, but the date could change if both attorneys agree.
Taylor inquired if the trial was set on the jury docket, alluding to the potentiality of Erath county citizens getting to determine the outcome of this case.
Taylor later said he would be seeking damages, punitive damages and attorney fees on behalf of his client.