Aue v. State

• Decision Date: 28 November 1934
• Docket Number: No. 9450.,9450.
• Citation: 77 S.W.2d 606
• Parties: AUE et al. v. STATE.
• Court: Texas Court of Appeals

77 S.W.2d 606

AUE et al. v.STATE.

No. 9450.

Court of Civil Appeals of Texas. San Antonio.

November 28, 1934.

Rehearing Denied December 19, 1934.

Appeal from Bexar County Court; Perry S. Robertson, Judge.

Condemnation proceedings by The State, by the Commissioners' Court of Bexar County, against Rudolph Aue and others, to secure a strip of land for state highway purposes.From a judgment condemning the land and awarding the defendants damages, the defendants appeal.

Affirmed.

Henry, Bickett & Bickett, of San Antonio, for appellants.

Raymond D. Wier and D. F. Davis, both of San Antonio, for appellee.

MURRAY, Justice.

This is a condemnation proceeding, brought under the provisions of article 6674n, Vernon's Ann. Civ. St., in which the state of Texas, acting by and through the commissioners' court of Bexar county, Tex., seeks to condemn for state highway purposes a strip of land containing about sixteen acres.The proceedings were against Rudolph Aue and his wife, Mollie Aue, and Agnes Seele, who were alleged to be the owners of the land.

The petition contained, among other things, the following allegation: "That the State of Texas, is now constructing, laying out and reconstructing a State Highway, designated as such, by the Highway Commission of Texas, in Bexar County, Texas, which said Highway is known and designated as State HighwayNo. 9; and that such construction and reconstruction upon said Highway is surveyed through, across and upon, and will cross, run through and upon the following described real property, * * *"(Here follows the description of the strip of land herein sued for by metes and bounds.)

It is also alleged that the commissioners' court had attempted to agree with the appellants, Rudolph Aue and wife, Mollie Aue, and Agnes Seele, as to the amount of damages, and had offered them the sum of $1,254.10, which offer had been declined.

After the filing of the condemnation proceedings, commissioners were appointed and made an award in the sum of $3,445, to appellants as the amount of the value of the property to be taken and the damages to be suffered.Both, appellants and appellee, filed objections to this award.

The trial was to a jury and resulted in a judgment condemning the land for state highway purposes and allowing Rudolph Aue and Mollie Aue an award in the sum of $2,341.50, and Agnes Seele an award in the sum of $100, from which judgment Rudolph Aue, Mollie Aue, and Agnes Seele have prosecuted this appeal.

Appellants' first proposition is as follows: "Under the statute(article 6674n, Vernon's Ann. Civ. St., Acts1933, 43d Leg., p. 622, ch. 207), it is a necessary prerequisite to the taking of private property for the construction of a designated state highway that the State Highway Commission select the particular location of the proposed highway and the property over which it is to pass; and, there being no exercise of such discretion or judgment by the State Highway Commission shown in this case with reference to the alleged proposed roadway, the judgment of the trial court was erroneous."

The law unquestionably rests the power and duty in the highway commission of selecting the property over which a proposed highway is to pass.However, this suit was instituted in the name of the state of Texas for the specific piece of land described in plaintiff's petition, and appellants did not, by sworn plea, raise the question that this suit had not been authorized by the proper governmental agency.Evidence was introduced showing that the highway commission, on September 23, 1931, authorized the state highway engineer to make a survey of highway No. 9, from the city limits of San Antonio to a connection with the present highway in Kendall county, and to accept the proposition of E. P. Arneson to complete the location surveys and prepare route sketch maps and right of way information.On July 1, 1932, the state highway commission passed and entered the following minutes:

            "Minute No. 6246
                                          "July 1, 1932
                

"In Bexar County, it is ordered that plans be completed on State HighwayNo. 9 from Leon Springs to the Kendall County line, and that bids be received from the construction of both Units I and II; the condition of this order being that Bexar County will furnish not less than a 120 ft. right-of-way on location approved by the State Highway Engineer, of the most economical and practicable type of Unit II.

"This is to certify that the above is a true and correct copy of MinuteNo. 6246, passed on July 1, 1932, the same appearing in the Official Record of the State Highway Department, at Austin, Texas.

                          "M. L. Wiginton
                "[Seal.] Secretary, State Highway Commission."
                

A blueprint map was introduced in evidence, made under the supervision of the resident engineer of the state highway department, showing the new route of state highway No. 9, and showing it to require the land herein sued for as a part of this new route.

The fact that the suit was instituted in the name of the state of Texas, by the county commissioners of Bexar county, and that its authority to bring and maintain this suit was not denied by appellants in a duly verified plea, as required by article 2010, Rev. Civ. Stats. 1925, will preclude appellants from contending that this suit was not properly instituted.If the state highway commission has in effect instituted this suit for the condemnation of this specific piece of land, it will be presumed that it had determined that it was necessary or convenient to the construction of state highway No. 9 that this particular piece of land be condemned by the state.

We do not feel that it was necessary for the evidence to show affirmatively that the highway commission had exercised its discretion, in the absence of a sworn plea denying the authority of the commissioners' court to maintain this suit, but, if it was necessary, then there is sufficient evidence in the record,...