Adams v. San Angelo Waterworks Co.

• Decision Date: 26 February 1894
• Citation: 25 S.W. 165
• Parties: ADAMS et al. v. SAN ANGELO WATERWORKS CO.
• Court: Texas Court of Appeals

Page 165

25 S.W. 165

ADAMS et al. v. SAN ANGELO WATERWORKS CO.

Court of Civil Appeals of Texas.

February 26, 1894.

Error from Tom Green county court; W. D. Cochran, Judge.

Application by the San Angelo Waterworks Company to condemn real estate. To a judgment of condemnation, Adams and Wickes bring error. Reversed.

Jos. Spence, Jr., for plaintiffs in error.

KEY, J.

The San Angelo Waterworks Company, a corporation, instituted this suit in the county court of Tom Green county to condemn certain real estate for the purpose of enlarging said company's system of waterworks. The company filed with the county judge its application, stating the necessity for such condemnation, and asking to have commissioners appointed to assess the damages. In addition to two tracts of land, described by metes and bounds, sought to be condemned, the description in the application reads as follows: "Plaintiff further avers that it is necessary for the purposes aforesaid that it construct and lay a water main from the N. W. corner of first above described tract west 1,206 feet, and north to a point 40 feet due east of the N. E. corner of Millspaugh's Add., or as near said description as practicable, said main to be laid four feet under ground." The county judge appointed commissioners to assess the damages, and said commissioners made a report showing that they had assessed the damages resulting to the plaintiffs in error, who were the owners of the land, at $265. Their report describes the land condemned precisely as does the company's application. At the succeeding term of the county court the following order was made: "San Angelo Waterworks Co. v. H. B. Adams and E. D. L. Wickes. April 11th, 1892. On this day this cause came on for trial, and it appearing to the court that the commissioners heretofore appointed to assess the damages did on the 20th day of March, 1891, file their assessment of damages herein, and it appearing to the court that, no objections having been filed thereto within the time required by law, it is therefore ordered that said assessment be, and the same is hereby, made the judgment of this court, and that the clerk record the same as such in the minutes of this court. To which judgment and order the defendants, by counsel, then and there in open court excepted, and in open court gave notice of appeal to our court of appeals." Then follows a copy of the report of the commissioners. Previous to the entry of this order, but not within 10 days after the report was filed with the county clerk, Adams and Wickes filed objections to the report, some of which raised the question of the court's jurisdiction. Because these objections were not filed within 10 days after the report was filed, the court, on its own motion, struck them out.

The plaintiffs in error's fifth proposition under their second assignment of error is as follows: "Plaintiff's application does not describe with sufficient certainty to identify the same that part of defendants' land over which plaintiff seeks to establish its pipe line for water mains in said condemnation proceedings, and all said proceedings in reference to said pipe line for water mains are void." This contention must be sustained. Neither the company's application, the report of the commissioners, nor the so-called "judgment" sufficiently describes any land to be condemned for a water main or pipe line. They merely call for lines to run certain courses and distances, with the qualification, "or as near said description as practicable." It is necessary that condemnation proceedings shall describe the premises condemned with as much certainty as is required in deeds and other conveyances. Mills, Em. Dom. § 115; Parker v. Railway Co., 84 Tex. 333, 19 S. W. 518. The description under consideration does not describe any land. Leaving out the element of uncertainty injected by the phrase, "or as near said description as practicable," it merely calls for lines extending from certain designated points to certain other points, and does not purport to embrace the land within the boundaries of said lines. A line has no definite dimensions except length. To condemn a line from one point to another is too indefinite and uncertain. It does not apprise the owner of the land, nor the person in whose favor it is condemned, of the amount of land — width of the strip — that is condemned. Besides, if the proceedings in question had described the strip of land condemned for a water main as being a designated number of inches or feet in width, and retained the words, "or as near said description as practicable," it would have been too uncertain. This latter phrase leaves the question as to what land is condemned in doubt and uncertainty. Condemnation proceedings, as they involve a summary taking of property from its owner, must always be conducted in strict accordance with the statute authorizing them, and must describe the property condemned with such certainty as...