Arcola Sugar Mills Co. v. Houston Lighting & P. Co.

• Citation: 153 S.W.2d 628
• Decision Date: 12 June 1941
• Docket Number: No. 11194.,11194.
• Parties: ARCOLA SUGAR MILLS CO. et al. v. HOUSTON LIGHTING & POWER CO.
• Court: Court of Appeals of Texas

Page 628

153 S.W.2d 628

ARCOLA SUGAR MILLS CO. et al. v. HOUSTON LIGHTING & POWER CO.

No. 11194.

Court of Civil Appeals of Texas. Galveston.

June 12, 1941.

Rehearing Denied July 17, 1941.

Appeal from Fort Bend County Court; C. L. Dutton, Judge.

Proceeding by the Houston Lighting & Power Company against Arcola Sugar Mills Company and others to condemn a right of way for an electric transmission and distributing line across a tract of land. From an unsatisfactory judgment of the county court, all parties appeal.

Affirmed.

See, also, 146 S.W.2d 199.

Walter F. Brown and C. I. McFarlane, both of Houston, for appellants.

Tom M. Davis, of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

GRAVES, Justice.

These several general statements, deemed to be correct as such, have been taken from the respective briefs of the parties in this court:

(1) That of the appellants:

"The Houston Lighting & Power Company brought this proceeding in the county court of Fort Bend County against the Arcola Sugar Mills Company to condemn a right-of-way for an electric transmission and distributing line across a tract containing 8,534 acres, the property of the Arcola Sugar Mills Company, for a distance of 18,567.3 feet, it being a part of a line extending from Blue Ridge to a pumping plant on the Brazos River just below the southwest corner of the land of the Arcola Sugar Mills Company. Commissioners were appointed and objections to their decision were duly filed with the County Judge.

"In the county court the case was tried before a jury and a judgment condemning the right-of-way sought to be condemned and awarding the Arcola Sugar Mills Company and to Lillian Scanlan and Stella Scanlan, individually and as liquidating trustees of Arcola Sugar Mills Company, they being the owners of all of the stock in the Arcola Sugar Mills Company, which at the time of the judgment was dissolved and in liquidation, jointly, $4,878.00, with 6% interest thereon from December 19, 1934, was rendered on the last day of the term of court, from which judgment all parties have perfected an appeal to this court."

(2) That of the appellee:

"Both appellants and appellee excepted to the judgment and gave notice of appeal. Within the time and manner required by law appellee perfected its appeal by filing its appeal bond.

"While appellee will present certain cross-assignments of error in this brief, it requests this court to consider and pass on said cross-assignments only in the event this court should be of the opinion that any of appellants' assignments of error present reversible error."

Appellants present 101 "assignments of error and points", while, in turn, appellee responds directly with 11 counter-propositions of law, and indirectly with 5 contingently urged cross-assignments of error.

The easement awarded appellee was for the construction by it of an electric transmission and distributing line, being 22 feet wide and 18,468.7 feet long, running from its Blue Ridge substation to a pumping plant on the Brazos River, comprising a conscription of 9.33 acres of land.

Of appellants' 101 assignments, Nos. 1 through 50, 61 through 73, and 93, as well as 100 and 101, all deal, by and large, with the question as to whether the appellee, at the time it so sought to do so, had properly complied with the pertinent statutory requirements and, in consequence, had the right to condemn such property for the purposes for which it sought in the proceedings here under review to condemn the same; the appellants contended that it did not have such right, that the laws of the State did not authorize the condemnation of that land for the appellee's declared-upon purposes over their protests, that the use for which the appellee sought to condemn it was not a public but a private use, that its ipse dixit in its pleadings for such a right—that the land was to be used for public purposes—had been made arbitrarily with knowledge on its part that such allegation was not true in fact, and that its specifications to the effect that it required the full easement applied for for a public use, were, further, not only so arbitrary and without foundation of fact, but also were made for the purpose of impressing upon such land an easement that is far more burdensome than is either necessary or appropriate for its actual needs.

In greatly extended discussion of these presentments, all of which the trial court considered and overruled, the appellants, in this court, in inveighing against that adverse determination below, inclusive of their challenge of that court's action in having held that the appellee had matured its right of condemnation, and that the only fact issues raised under the pleadings and proof for the jury were those as to the value of the land sought to be condemned, along with the amount of resulting damage to appellants' remaining lands, which were submitted in 4 special issues to the jury, cite as supporting their positions, among many others, these authorities: Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503; Id., Tex.Civ.App., 252 S.W. 821; Borden v. Trespalacios Rice & Irr. Co., 98 Tex. 494, 86 S.W. 11, 107 Am.St. Rep. 640; 20 Tex.Jur. 546; Moseley v. Bradford, Tex.Civ.App., 190 S.W. 824, 825; Acme Cement Plaster Co. v. American Cement Plaster Co., Tex.Civ.App., 167 S.W. 183; Houston Belt T. R. Co. v. Hornberger, Tex.Civ.App., 143 S.W. 272; Gaylord v. Sanitary Dist., 204 Ill. 576, 68 N.E. 522, 63 L.R.A. 582, 98 Am.St.Rep. 295; Tracy v. Elizabethtown, L. & B. S. R. Co., 80 Ky. 259; Shake v. Frazier, 94 Ky. 143, 21 S. W. 583; Brown v. Gerald, 100 Me. 351, 61 A. 785, 70 L.R.A. 472, 109 Am.St.Rep. 526; Berrien Springs Water Power Co. v. Berrien Circuit Judge, 133 Mich. 48, 94 N.W. 379, 103 Am.St.Rep. 438; Massie v. City of Floydada, Tex.Civ.App., 112 S.W.2d 243; Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508; Missouri-Kansas-Texas R. Co. v. Jones, Tex. Com.App., 24 S.W.2d 366; Tod v. Massey, Tex.Civ.App., 30 S.W.2d 532; West v. Whitehead, Tex.Civ.App., 238 S.W. 976; Borden v. Trespalacios Rite & Irr. Co., 98 Tex. 494, 86 S.W. 11, 15, 107 Am.St.Rep. 640; 16 Tex.Jur. 807; Gulf, C. & S. F. R. Co. v. Ross, 4 Willson Civ.Cas.Ct.App. § 87, 16 S.W. 536; Ft. Worth & R. G. R. Co. v. Culver, 4 Willson Civ.Cas.Ct.App. § 5, 14 S.W. 1013; Ft. Worth & D. N. R. Co. v. Johnson, Tex.Com.App., 84 S.W.2d 232; 16 Tex.Jur. 577; Leathers v. Craig, Tex.Civ. App., 228 S.W. 995; Dallas Cotton Mills v. Industrial Co., Tex.Com.App., 296 S.W. 503; Tod v. Massey, Tex.Civ.App., 30 S.W. 2d 532, 534; Ferguson v. Illinois Cent. R. Co., 202 Iowa 508, 210 N.W. 604, 54 A.L. R. 1; Malone v. City of Madisonville, Tex. Civ.App., 24 S.W.2d 483, 543; Mann v. Trinity Farm Co., Tex.Civ.App., 270 S.W. 923; Ryan v. State, Tex.Civ.App., 21 S.W. 2d 597; Tempel v. Dodge, 89 Tex. 68, 32 S. W. 514, 33 S.W. 222; Isaac v. City of Houston, Tex.Civ.App., 60 S.W.2d 543; Suburban Inv. Co. v. Atlanta, 148 Ga. 593, 97 S.E. 542; Bridwell v. Gate City Ter. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A.,N.S., 909; Schaadt v. Ironton R. Co., 22 Pa.Co.Ct.R. 101; 10 T.J. 954, 955; Dallas Joint Stock Land Bank v. Cavitt, Tex.Civ.App., 93 S. W.2d 207, 211; 17 Tex.Jur., 483 and 526; Houston B. & T. R. Co. v. Wilson, Tex. Civ.App., 176 S.W. 907; City of Ft. Worth v. Charbonneau, Tex.Civ.App., 166 S.W. 387; Wolsch v. State, Tex.Civ.App., 77 S. W.2d 1062; State v. Carpenter, Tex.Com. App., 89 S.W.2d 194; Wise v. Abilene, Tex. Civ.App., 261 S.W. 549; Johnston v. Galveston County, Tex.Civ.App., 85 S.W. 511.

Under others of their stated assignments, they present subsidiary contentions, in the main, to the effect that the appellee had made no statutory preliminary attempt to agree with the appellants as to the amount of the damages the latter might suffer from such condemnation, that appellee's Board of Directors had not been shown to have determined that a public or any other kind of necessity had existed for it to condemn such land, that the appellee's trial amendment to its pleadings specifying that only appellants had the right to fence such right-of-way across their land had the effect of invalidating the whole condemnation proceedings, that the testimony of the witnesses, Delhomme, Chandler, Lindenberg, and Wood, admitted as bearing upon the issues as to damages so submitted to the jury, was erroneously received, and that the damage issues as so submitted were improper and subject to their specified objections against them.

In reply, the appellee's 11 counter-propositions, together with its respective leading authorities on each, may be thus, in substance, epitomized:

(1) "The undisputed evidence disclosed as a matter of law that appellee has the power of condemnation, and that the easements here sought to be condemned were for a public use, that is, the distribution of electrical energy and power to consumers in Fort Bend County, Texas, and elsewhere." Art. 1302, R.C.S.T., Vernon's Ann.Civ.St. art. 1302; Art. 1435, R.C.S.T.; Arts. 1436 and 1438, R.C.S.T.; 18 Am.Jur., 675-677, 694-696, 667-669, 673, 674, 733-736; 44 A.L. R. 741; North Carolina, etc., v. Southern Power Co., 4 Cir., 282 F. 837, 33 A.L.R. 626; Borden v. Trespalacios, Rice & Irr. Co., 98 Tex. 494, 86 S.W. 11, 107 Am.St.Rep. 640; West v. Whitehead, Tex.Civ.App., 238 S.W. 976; Texas and N. O. R. Co. v. Schoenfeld, Tex.Sup., 146 S.W.2d 724; Alton R. Co. v. Illinois Commerce Commission, 305 U.S. 548, 59 S.Ct. 340, 83 L.Ed. 344; 16 Tex.Jur. 652; Lewis "Eminent Domain", 3d Ed., Vol. 2, pp. 1062, 1063, 1068; National Ass'n v. Arroyo, etc., Tex.Civ. App., 110 S.W.2d 150; Palmer v. Harris County, 29 Tex.Civ.App. 340, 69 S.W. 229; McInnis v. Brown County, Water Imp. Dist. No. 1, Tex.Civ.App., 41 S.W.2d 741; Cane Belt R. Co. v. Hughes, 31 Tex.Civ. App. 565, 72 S.W. 1020.

(2) "The undisputed evidence proved as a matter of law that appellee, having the right of condemnation and...