Brazos R. Conservation & Reclamation Dist. v. Allen

• Decision Date: 26 May 1943
• Docket Number: No. 8069.,8069.
• Citation: 171 S.W.2d 842
• Parties: BRAZOS RIVER CONSERVATION & RECLAMATION DIST. v. ALLEN et al.
• Court: Texas Supreme Court

Page 842

171 S.W.2d 842

BRAZOS RIVER CONSERVATION & RECLAMATION DIST. v. ALLEN et al.

No. 8069.

Supreme Court of Texas.

May 26, 1943.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by C. E. Allen and another against Brazos River Conservation and Reclamation District for an injunction enjoining the District from prosecuting a second proceeding for condemnation, filed by it and pending before special commissioners appointed by the county judge, until final disposition of a pending prior condemnation suit filed by the District, affecting part of same land. An order of the county court refusing a temporary injunction was reversed by Court of Civil Appeals and temporary injunction directed to be issued, 166 S.W.2d 386, and the defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Samuels, Foster, Brown & McGee, of Fort Worth, and T. T. Bouldin, of Mineral Wells, for appellant.

J. R. Creighton and Ritchie & Ritchie, all of Mineral Wells, for appellees.

SMEDLEY, Commissioner.

This is a suit for injunction filed in the county court of Palo Pinto County by respondents Allen and Ritchie, land owners, to enjoin petitioner Brazos River Conservation and Reclamation District from prosecuting a second proceeding for condemnation, filed by it and pending before special commissioners appointed by the county judge, until final disposition of a pending prior condemnation suit filed by the District, affecting the same land or in part the same land. On appeal by respondents from an order of the county court refusing a temporary injunction, the Court of Civil Appeals reversed the trial court's judgment and directed it to issue injunction, as prayed for, effective until final judgment in the first condemnation suit. 166 S.W.2d 386.

Brazos River Conservation and Reclamation District, which will be referred to as the District, was incorporated by an act of the legislature in 1929, for the purpose, among others, of storing, controlling and conserving storm, flood and unappropriated waters of the Brazos River, and was given the power of eminent domain to acquire by condemnation any real or personal property, or any interest therein, within or without the boundaries of the District, necessary or convenient to the exercise of the powers, rights and privileges conferred upon it, in the manner provided by general law with respect to condemnation. Local and Special Laws Second Called Session, 41st Legislature, Ch. 13, p. 22, Acts 1934, 4th Called Sess., c. 3, as amended by Acts 1935, 1st Called Sess., c. 368, Vernon's Annotated Civil Statutes, Vol. 21, following article 8197f, pp. 536, 545.

On March 25, 1940, when the District was constructing and about to complete across the Brazos River a dam known as Possum Kingdom Dam, it filed with the county judge of Palo Pinto County its petition for the purpose of condemning the fee simple title to 1,055 acres of land owned by respondents Allen and Ritchie, of which 642 acres would be inundated by the water impounded by the dam. The remaining 413 acres were above and beyond the margin of the reservoir and would not be covered by the impounded water when at spillway level, which was 1,000 feet above sea level.

At the hearing before the special commissioners appointed to assess the damages to be paid the land owners, and after evidence had been offered as to oil and gas wells near Possum Kingdom Reservoir and as to the extent and value of oil and gas deposits in the margin of the reservoir, counsel for the District proposed to Allen and Ritchie, the land owners, that the District would, with their consent, agree to confine its efforts to condemn their property to an easement only and affecting only the land below the 1,000 foot contour line or level of the lake. Formal agreement was made that the commissioners in their findings should "deem these proceedings as an application merely for an easement of the lands up to the 1000 foot contour", that the final decree should include the easement and that the land owners would waive overflow damages to the remainder of the land. Thereupon, by agreement, the petition for condemnation was changed so as to seek condemnation only of an easement and only of the land below the 1,000 foot contour line, that is, the 642 acres. Following the agreement and the change of the petition, the hearing proceeded for the assessment of damages for the property and interest sought to be taken, that is, an easement affecting the 642 acres; and the commissioners, on May 24, 1940, made their award, finding that Allen and Ritchie were entitled to $21,580 as the value of the easement in and on the 642 acres.

The District, being dissatisfied with the award made by the commissioners, filed its objections thereto on May 29, 1940; and in order that it might take possession of the property pending the disposition of the litigation in the county court, the District, on June 3, 1940, deposited $21,580.00 with the clerk of that court. Article 3268, Revised Civil Statutes of 1925, Vernon's Ann. Civ.St. art. 3268.

Thereafter, the openings in the dam were closed and the water in the reservoir, about May 10, 1941, reached the 1,000 foot contour line, covering all of the 642 acres sought to be condemned. The record does not show when the dam was fully completed or when the openings in it were closed. It is disclosed by the record in cause No. 8068, this day decided by this court, that on October 12, 1940, there was no water actually impounded on Allen and Ritchie's land by the dam. It clearly appears, however, from the records in the two cases and in other recent cases arising out of the construction of the dam and the reservoir, that on and for some time prior to that date, October 12, 1940, the dam had been practically completed and that little remained to be done, except closing the gates or openings in the dam and awaiting the accumulation of water, to complete the actual possession of respondents' land by inundation.

On October 23, 1940, the District filed in the county court of Palo Pinto County a motion to dismiss the condemnation suit which, after the filing of its objection to the commissioners' award, had been docketed in that court as cause No. 2526. In the motion the District stated that "it will no longer prosecute said cause" and requested the court to note a dismissal on the docket. At the same time the District requested the court to make an order releasing the funds that it had deposited with the clerk. The court on the same day made an order overruling the motion to dismiss. That suit, cause No. 2526, has never been tried and is still pending in the county court, and the money deposited by the District remains on deposit as a special fund in the County Depository.

On November 24, 1941, the District filed with the county judge its second petition for the condemnation of respondents' land. This petition is substantially the same as the first petition when originally filed. It seeks to condemn the same 1055 acres, including the 642 acres below the 1,000 foot contour line and the 413 acres above that line, and the interest sought to be condemned is the entire fee simple interest in the land, not merely an easement.

The county judge appointed commissioners, who set the petition for hearing, as cause No. 2579, on January 5, 1942. The purpose of the instant suit and the effect of the judgment of the Court of Civil Appeals herein is to restrain the District from prosecuting the second condemnation proceeding and from requesting the commissioners to proceed with a hearing therein, until final disposition is made of the first condemnation suit.

The application for writ of error filed by the District presents, first, the contention that the District should not be precluded by the institution and pendency of the prior suit, in which a lesser quantity of land and merely an easement was sought to be condemned, from instituting a new proceeding for the purpose of acquiring a greater quantity of land and an estate in fee simple. The argument is made that the decision of the Court of Civil Appeals, if upheld, "would lay down a hard and fast rule under which a district such as this, having committed an error of judgment in a first proceeding for condemnation, should be absolutely denied the privilege of correcting its error by dismissing the first proceeding and instituting another in its stead."

Most, if not all, of the principles invoked by petitioner to sustain its position are sound and well supported by authorities, but they do not answer the very question presented herein. The question is not whether the District may maintain a proceeding for the condemnation of additional land and of another interest in the land involved in the first suit. The question is, as stated in the opinion of the Court of Civil Appeals herein , written by Associate Justice Funderburk:

"When an agency of government having...