Aronoff v. City of Dallas

• Decision Date: 02 September 1958
• Docket Number: No. 7055,7055
• Citation: 316 S.W.2d 302
• Parties: Rochelle ARONOFF et al., Appellants, v. CITY OF DALLAS, Texas, et al., Appellees.
• Court: Texas Court of Appeals

Page 302

316 S.W.2d 302

Rochelle ARONOFF et al., Appellants, v. CITY OF DALLAS, Texas, et al., Appellees.

No. 7055.

Court of Civil Appeals of Texas, Texarkana.

Sept. 2, 1958.

Rehearing Denied Sept. 23, 1958.

Nathan Rachael, Rachael & Smith, Shields, Jones & Whittington, McKool & Bader, Dallas, for appellant.

Henry Kucera, Jon H. Shurette, Chas. C. Wells, Locke, Locke & Purnell, Jess Hay, C. G. Purnell, Wayne O. Woodruff, Dallas, for appellee.

FANNING, Justice.

This is a condemnation case and the judgment of the trial court is affirmed.

Appellees, Texas Turnpike Authority and the City of Dallas, Texas, instituted this suit on November 21, 1956, to condemn a tract of land with improvements thereon located on South Industrial Boulevard in Dallas, Texas. The property involved was owned by Rochelle Aronoff and her husband, Nathan Aronoff, subject to the leasehold estates of Federal Sign Company of Texas and Davis-McPhail Electric Company. The property was condemned for the purpose of constructing thereon a part of an interchange between U. S. Highway 77, U. S. Highway 80 (Commerce Street), and the Dallas-Fort Worth Turnpike Project, which is being constructed under the auspices of the appellee Texas Turnpike Authority.

In response to the special issues submitted, the jury found to the effect that the value of the subject property, including all interests therein, amounted to $26,389, which total sum was apportioned among the various condemnees as follows: To appellants Nathan and Rochelle Aronoff, the sum of $23,963; to the appellant Federal Sign Company of Texas, the sum of $2,426; and to the appellant Davis-McPhail Electric Company, the sum of $0. The trial court entered judgment in accordance with the verdict of the jury and the above named appellants have appealed.

All of the appellants challenged the right, power and authority of the Texas Turnpike Authority and the City of Dallas to condemn the subject property.

Article 6674v, Vernon's Rev. Civ. St. of Texas, known as the Texas Turnpike Authority Act, which created the Texas Turnpike Authority, declares that 'the Authority is hereby constituted an agency of the State of Texas, and the exercise by the Authority of the powers conferred by this Act in the construction, operation and maintenance of turnpike projects shall be deemed and held to be an essential governmental function of the State.' Sec. 3.

Section 23 of the same statute provides:

'Sec. 23. Act Liberally Construed. This Act, being necessary for the welfare of the State and its inhabitants, shall be liberally construed to effect the purposes thereof.'

Section 8 of Article 6674v, V.R.C.S. reads in part as follows:

'Sec. 8. Condemnation of Property. Whenever a reasonable price cannot be agreed upon, or whenever the owner is legally incapacitated, or is absent, unknown or unable to convey valid title, the Authority is hereby authorized, and empowered to acquire, by the exercise of the power of condemnation and in accordance with and subject to the provisions of any and all existing laws and statutes applicable to the exercise of the power of condemnation of property for public use, any land, property rights, right-of-ways, franchises, easements or other property deemed necessary or appropriate for the construction or the efficient operation of any Turnpike Project or necessary to the restoration of, public or private property damaged or destroyed; provided, however, the Authority may not condemn any land except such as will be necessary for road and right-of-way purposes. The road and right-of-way purposes for which the Authority may condemn land, shall include the land necessary for access, approach, and interchange roads, but shall not include any supplemental facility for other purposes. Such supplemental facilities must be constructed upon land acquired by purchase and not by condemnation. * * *' (Emphasis added.)

Section 7 of the Turnpike Act, which is Article 6674v, V.R.C.S., provides in part as follows:

'* * * The governing body of every county, city, town, political subdivision or public agency is authorized without any form of advertisement to make conveyance of title or rights and easements to any property needed by the Authority to effect its purposes in connection with the construction or operation of a Turnpike Project.'

The evidence adduced clearly shows that the acquisition of the subject property was necessary to the pbulic purposes of the appellees, City of Dallas, Texas, and Texas Turnpike Authority. The use to which the condemned property has been put is amply stated both in the pleadings and in the testimony of the witnesses, to-wit: 'A freeway project which will connect said U. S. Highway 77 with said Dallas-Fort Worth Turnpike Project.' We think it is also undisputed in the record that the Texas Turnpike Authority had deemed the property necessary for road and right-of-way purposes of the Dallas-Fort Worth Turnpike and that sufficient proof showing the authority of the Turnpike Authority to condemn was properly made.

It is clear from the evidence adduced that the subject land condemned together with other adjacent property, was to be used for the construction of a ramp leading from Highway 77 into Commerce Street in the City of Dallas, Texas, as a part of an interchange and connection between Highway 77, which runs generally North and South, and the Dallas-Fort Worth Turnpike, which runs East and West, both of which join in the area of the subject condemned property in a complicated pattern of roadways shared by traffic of both, and that this ramp is a necessary and convenient part of that interchange, not only to permit motor vehicles to go from Highway 77 into Commerce Street, but also to prevent motor vehicles traveling South on Highway 77 from being, in the parlance of the highway engineers, 'trapped' into paying a toll if the driver prefers to travel to Fort Worth on Highway 80 rather than via the Turnpike. Clearly the subject condemned property was a necessary and proper part of the interchange and approach facilities to the Dallas-Fort Worth Turnpike.

We also think that it is clear that since the subject condemned property is to be used for an interchange between Highway 77 in the City of Dallas and the Dallas-Fort Worth Turnpike and will serve both facilities, both the City of Dallas (which acquires land within the City for the construction of highways by the Texas Highway Department) and the Texas Turnpike authority are mutually and dually interested in the acquisition of the subject condemned property.

We hold that the Texas Turnpike Authority had ample right, power and authority to condemn the subject property under Article 6674v, Vernon's Ann.Civ.St., under the facts shown in the record of this case. Appellants Aronoffs' points 1 to 6, incl., appellant Federal Sign Company's points 1 to 6, incl., and appellant Davis-McPhail Electric Company's adoption of such points of said appellants, are deemed to be without merit under this record and are respectfully overruled.

Appellants also contend to the effect that the judgment should be reversed because the City of Dallas did not make any bona fide effort to agree with appellants on the amount of damages and that the City of Dallas did not make any offer to any of the appellants. Appellants Federal Sign Company and Davis-McPhail Electric Company further contend to the effect that the judgment of the trial court should be reversed because the Turnpike Authority did not make any bona fide effort to agree with them on the amount of damages and that the Turnpike Authority did not make any offer to them. All appellants further contend to the effect that a joint condemnation by the City of Dallas and the Turnpike Authority was not authorized by law and that the City of Dallas was not authorized by law to condemn the subject property for and on behalf of the Turnpike Authority.

Introduced in evidence was a resolution by the City Council of the City of Dallas, Texas, dated November 19, 1956. Briefly stated, this resolution sets forth the following facts in its preamble:

'1. That the Turnpike Authority was in the process of constructing a toll road between Dallas and Fort Worth, and was acquiring property for its right of way by condemnation;

'2. That certain property was needed by the Authority to connect with U. S. Highway 77 Freeway, and with other City streets, and that all the appellants were owners thereof;

'3. That the Turnpike Authority was negotiating with the owners for the purchase of this property in cooperation with the City Manager, but that all offers had been rejected;

'4. That the officials of Petitioner City of Dallas knew of these negotiations and the failure to agree, and were convinced that voluntary settlement could not be accomplished;

'5. That the property was located within the corporate limits of the City of Dallas and that it was necessary to condemn it for right of way purposes for streets within the City;

'6. That it was advisable for the City of Dallas to join with the Turnpike Authority in one proceeding to acquire the right of way necessary for the Turnpike interchange for U. S. Highway 77 Freeway and for other streets.'

With these premises, the City Council then resolved that public necessity required that the City and Texas Turnpike Authority acquire the property owned by appellants for use in connection with these projects, and names each owner whose land should be acquired, and then states that a bona fide effort had been made to agree with these owners by the offer of the sum of $21,825 made by the Turnpike Authority, and ratified and confirmed by the City Council of the City of Dallas, and then authorized the City Attorney to file such suits as might be necessary to acquire title to this land.

The evidence undisputedly shows that the Turnpike Authority made a bona fide effort to agree with the appellants Aronoffs on the amounts of damages due to them and made a...