Brazos River C. & Reclamation Dist. v. Harmon

• Decision Date: 28 January 1944
• Docket Number: No. 2405.,2405.
• Citation: 178 S.W.2d 281
• Parties: BRAZOS RIVER CONSERVATION & RECLAMATION DIST. v. HARMON et al.
• Court: Texas Court of Appeals

178 S.W.2d 281

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

No. 2405.

Court of Civil Appeals of Texas. Eastland.

January 28, 1944.

Rehearing Denied February 25, 1944.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Palo Pinto County; Ernest Belcher, Judge.

Suit by Mrs. Jessie Harmon and others against the Brazos River Conservation and Reclamation District to enjoin defendant from entering upon and appropriating plaintiffs' lands for the construction of a dam. Defendant, by way of cross-action, sought condemnation of such lands. E. Constantin intervened. From the adverse portion of judgment, the district appeals.

Affirmed.

T. T. Bouldin, of Mineral Wells, and Sidney Samuels, of Fort Worth, for appellant.

J. R. Creighton and Ritchie & Ritchie, all of Mineral Wells, and Martin, Moore & Brewster, of Fort Worth, for appellees.

LESLIE, Chief Justice.

Mrs. Jessie Harmon and others undertook to enjoin the Brazos River Conservation and Reclamation District from entering upon and appropriating their lands for the construction of Possum Kingdom Dam. Brazos River and Reclamation Dist. v. Costello, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220. The District by way of cross-action under Art. 3269, Vernon's Ann.Civ.St., sought condemnation under the right of eminent domain. The trial was before the court and jury, and upon the latter's answers to special issues judgment was entered awarding damages for land taken and also denying right of condemnation of alleged "excess acreage" on the ground the District was guilty of abuse of discretion in seeking to condemn such acreage. In response to other issues, the jury found that said "excess lands" above the high-water level of the reservoir were being sought by the District for park and recreational purposes and also that one of the purposes was to lease such lands to individuals for private camp sites. Other elements of the verdict and judgment will be later referred to.

The District appeals, presenting fifty-four points of error. Some are grouped and briefed together and will be so considered here.

The District's cross-action in condemnation was filed May 25, 1940. At that time Mrs. Harmon and her husband owned about 1385.64 acres adjacent to the dam and sought to be condemned for said public use. She owned all interest in the land except a small mineral interest formerly owned by others, but owned by the District at time of trial.

On March 31, 1942, and while the proceeding was pending, the Harmons conveyed their land, except a mineral interest retained, to E. Constantin. He intervened in said cause, and alleged that subsequent to the filing of District's cross-action he acquired on March 31, 1942, by purchase from Mrs. Harmon all her interest in said land except oil and gas rights reserved by her.

As to such rights Mrs. Harmon, joined by her husband, answered the District's cross-action, and alleged they were the owners of an undivided one-fourth interest in the oil and gas and other minerals under 1432.4 acres of the land, designated as "First Tract", and a like one-half interest in the oil, gas and other minerals in the remainder of the lands designated as "Second" and "Third" tracts. In this answer the Harmons also alleged that on March 31, 1942, they conveyed to intervenor Constantin all their interest in the land except said mineral interest in the tracts above specified. They also alleged that in making such conveyance to Constantin they retained a vendor's lien to secure unpaid purchase money for the land.

The District sought a fee simple title in the surface and easement on the mineral rights. Under a previous order of the trial court, pursuant to opinion of the Supreme Court, the District placed in the registry of the trial court $28,000 on October 30, 1940, for the purpose of securing the Harmons in payment of damages accruing to them by virtue of the taking of said land and easement, and for the further purpose of giving the District the right to take immediate possession of said property.

May 10, 1941, the Dam was filled to 1000 foot contour line, and approximately 750 acres of the original Harmon lands were inundated.

Intervenor Constantin limited his right of recovery to damages which the District might inflict on the property he had acquired from the Harmons March 31, 1942, and the Harmons confirmed such sale and sought damages arising from any easement the District might impress on their retained mineral interest.

In addition to the above allegations, the intervenor further alleged that he "also acquired in connection with said purchase the right to share in the fund heretofore deposited in the registry of the court by Petitioner District for the securing of certain property owners as hereinafter more fully described; including the right to recover such amount or portion of funds with interest as Intervenor may be found entitled to." As stated, the Harmons confirmed such right in him, set up the retained vendor's lien to secure the payment of the balance of the purchase money, and asked that any recovery awarded Intervenor be applied to the payment of the balance of said unpaid purchase money debt.

In the trial below intervenor raised the issue that the District was seeking to condemn some 800 acres of his land lying above the 1000 foot contour line (the level of the reservoir), for unauthorized nonpublic purposes (1) private use of individuals for camp sites, (2) park purposes, and that directors of the District were guilty of an abuse of discretion in determining the necessity warranting the taking of such excess acreage. He did not resist the District's right to condemn the 755.04 acres lying below the 1000 foot contour line but alleged its value or the damage resulting from its taking to be $25,424.04. The attempt to take the 800 acres above the high-water mark was resisted on the grounds above stated.

The jury found the value of the land in "Tract One" below the contour line (less Mrs. Harmon's mineral interest, and that of some third parties, J. C. Reese, et al., not involved in this suit) to be $15,097.50. The jury found that parts of Tracts "Two" and "Three" owned by intervenor below the contour line, exclusive of Mrs. Harmon's mineral interest therein, to be of the value of $2,101.

In his judgment the trial court found "That Intervenor Constantin acquired by purchase all the rights of Mrs. Jessie Harmon in and to the deposit heretofore made by the cross-complainant (the District) to secure her in the payment for said property, except that Mrs. Harmon retained a mineral interest as hereinafter described."

The trial court further decreed that intervenor recover from the District $17,198.50 as damages for property taken by the District in each of the above tracts but the court under the findings of the jury refused to enter a judgment of condemnation for the District of any of intervenor's land situated above the 1000 foot contour line, or the high-water mark.

The court further found Mrs. Harmon held a purchase money obligation and vendor's lien against the property originally sold to intervenor and that the amount so secured was largely in excess of the above award to the intervenor. Thereupon, the court, after providing for the payment of a small amount to the Federal Land Bank (secured by tracts "Three" and "Four"), decreed that the remainder of the sum awarded Constantin should be paid to Mrs. Harmon to be by her credited on the vendor's lien note which Constantin executed to her in part payment for her lands.

The judgment also provided: "And when said sum is paid to her the lien of Mrs. Jessie Harmon on the 671 acres shall be extinguished and all the claims of Mrs. Jessie Harmon growing out of the taking and condemnation of all the property hereinabove described are here extinguished."

From different angles the appellant's Points 1 to 7 raise substantially the same question, whether intervenor Constantin, who purchased said land during the pendency of the condemnation suit, was in a position to recover judgment for the value of the property condemned and taken from him in the absence of a formal assignment from Mrs. Harmon of her right or cause of action accruing as a result of the District's taking said property at a time prior to her sale and transfer of the same to the intervenor. Stated differently, the District insists that "inasmuch as there was no assignment or transfer by Mrs. Harmon to Constantin of the right of action for damages, on the recovery thereof", he is not "entitled to stand in the shoes of the vendor or to recover damages from the District because of such taking."

These propositions do not fully or accurately reflect the background of facts which may be briefly restated and summarized as follows: Constantin purchased the land from Mrs. Harmon during the pendency of the condemnation proceeding and prior to final judgment or payment to condemnee of any award. In his pleadings he sought recovery of the value of his lands taken, exclusive of Mrs. Harmon's preserved mineral interest therein. In addition, he alleged that by reason of having so acquired said property, he had a right to share in or recover his proportionate or corresponding share of the funds theretofore deposited by the District in the registry of the court as security for Mrs. Harmon and to enable to take possession of said lands. Supplementing intervenor's contention and in harmony therewith, Mrs. Harmon recognized his theory of recovery, and sought to recover damages resulting to her mineral interests only. In addition she asked that such amount of the deposit as might be awarded intervenor, representing the value of the land taken from him, be applied on the vendor's lien note executed to her by Constantin for the land conveyed to him.

Obviously Mrs. Harmon, original vendor, and Constantin, her vendee, are both parties to this suit, asserting no conflicting claims, and are bound by the judgment. They are...