Brazos River Conservation and Reclam. Dist. v. Costello

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Brazos River Conservation and Reclam. Dist. v. Costello, 169 S.W.2d 977 (Tex. App. 1943)
• Decision Date: 26 February 1943
• Docket Number: No. 2324.,2324.
• Petition History: writ ref'd w.o.m.
• Parties: BRAZOS RIVER CONSERVATION AND RECLAMATION DIST. v. COSTELLO et al.

Page 977

169 S.W.2d 977

BRAZOS RIVER CONSERVATION AND RECLAMATION DIST. v. COSTELLO et al.

No. 2324.

Court of Civil Appeals of Texas. Eastland.

February 26, 1943.

Rehearing Denied March 26, 1943.

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

Suit by E. P. Costello and others against the Brazos River Conservation and Reclamation District and others, to enjoin defendant district from entering upon plaintiffs' respective lands, wherein defendant district instituted a condemnation suit by way of cross-action. From judgment entered, the defendant district appeals.

Affirmed.

See, also, 142 S.W.2d 414.

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

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

LESLIE, Chief Justice.

This is a condemnation suit by way of cross action under the terms of Art. 3269 R.S. 1925, as amended, Vernon's Ann.Civ. St. art. 3269, growing out of an injunction in which the appellee E. P. Costello and others sought to enjoin the District from entering upon their respective lands,

E. P. Costello owned a tract of land in Palo Pinto County adjacent to and in the basin of Possum Kingdom Dam, embracing approximately 4,100 acres of which about 2,400 acres was sought to be condemned for the public use of the District engaged in the construction of a dam across the bed of Brazos River.

Prior to condemnation proceeding, Costello had conveyed a one-half mineral interest in a portion of his property to Argo Oil Corporation. Subject to mineral interests sold and existing mineral leases on the 4,100 acres, Costello was the owner in its entirety, mineral and surface together.

The trial was before the court and jury, and on verdict returned, judgment was rendered in favor of Costello for $94,929.67 and in favor of Argo Oil Corporation for $9,148.85.

Goble and Moore, owners of leasehold through mesne conveyances from Montgomery, were settled with and will not be further noticed.

The District's appeal is predicated on 20 points considered in the order briefed.

Point 20 is first and as follows: "The trial court committed harmful and reversible error in withdrawing the charge read and submitted to the jury, after leading counsel for appellant had argued and concluded his argument to the jury, based on said original charge, and in substituting therefor, over the protest and objections of the remaining counsel of appellant, an entirely different charge containing and embracing issues not set forth in the original charge, and issues varying in legal effect from those in the charge first submitted. The effect of such action was to vitiate the judgment rendered by the court on the verdict."

The appellant's statement under the proposition is substantially correct and in material parts as follows:

"On February 2, 1942, the court prepared his charge to the jury and submitted to counsel for appellant for objection * * * Thereupon counsel for appellant addressed objections to the charge, which objections the court overruled * * * and then, * * * read * * * the charge to the jury. When the reading of the charge was concluded, the court * * * directed Mr. George Ritchie, one of counsel for Costello, to proceed with his argument to the jury, which was done, and at the conclusion of such argument Sidney L. Samuels of Fort Worth, * * * was directed by the court to proceed with his argument, which argument * * * was made * * * and * * * based upon the (original) charge as * * * read * * * to the jury * * *.

"At the conclusion of the argument by Sidney L. Samuels, he, * * * having been called home on an important case * * * awaiting his * * * attention, left Palo Pinto for Fort Worth, which absence was excused by the Court. This concluded the argument for the day and the court * * * adjourned * * * until the following day * * *.

"On the morning of the following day the court withdrew the charge that had been read * * * to the jury on the preceding day and substituted * * * different charge, in which the issues of fact were changed and the language of submission altered * * *. When the court made such substitution and prior to the reading of such substituted charge to the jury, the remaining counsel for appellant excepted and objected to the action of the court, because the text of the new charge was different * * * and because the issues in the substituted charge were unlike those in the original charge as * * submitted the day before; and, further, because the counsel, Sidney L. Samuels, had made his argument to the jury on the preceding day on the faith of the original charge and had been governed * * * by the issues therein submitted and the instructions of the court to the jury; * *."

Notwithstanding some expressions in brief to the contrary, each charge gave the same definition respectively of "Cash Market Value" and "Actual Cash Value".

The only points of difference between the two charges or the issues therein is manifested by the words "subject to the existing mineral leases" inserted in the last and italicized by us. The same alteration was made to issues 1 to 10, both inclusive, but for illustration only issues 1, 2 and 3 will be set forth:

"In the original charge special issue No. 1 reads as follows:

"Do you find from a preponderance of the evidence that the E. P. Costello lands excluding the mineral interest of Respondent Argo Oil Corporation, on or about the 30th day of October, 1940, had a cash market value?

"In the substituted charge this issue was stated:

"Do you find from a preponderance of the evidence that the E. P. Costello lands, subject to the existing mineral leases, and exclusive of the mineral interest of the Argo Oil Corporation, on or about the 30th day of October, 1940, had a cash market value?

"In the original charge special issue No. 2 reads:

"Do you find from a preponderance of the evidence that the mineral interest in question of Respondent Argo Oil Corporation, on or about October 30, 1940, had a cash market value?

"This issue in the substituted charge is:

"Do you find from a preponderance of the evidence that the mineral interest in question of Respondent Argo Oil Corporation, subject to the existing mineral leases, on or about October 30, 1940, had a cash market value?

"In the original charge special issue No. 3 reads:

"From a preponderance of the evidence what do you find was the cash market value on or about October 30, 1940, of the 2398.5 acres of land of E. P. Costello, excluding the mineral interest of Respondent Argo Oil Corporation, taken from the Petitioner District for its purposes, considered as severed land?

"In the substituted charge special issue No. 3 is stated:

"From a preponderance of the evidence, what do you find was the cash market value on or about October 30, 1940, of the 2398.5 acres of land of E. P. Costello taken by Petitioner District for its purposes, considered as severed land subject to the existing mineral leases, and excluding the mineral interest of Respondent Argo Oil Corporation?"

Appellant insists that the above acts and procedure by the trial court constitutes reversible error. Such contentions will be considered in the light of the record generally and the following qualification made by the trial judge of the bill of exception preserving the point:

"Presented, considered, and overruled, with the following explanation and qualification: During the trial of the above cause and after the reading of the Court's Charge to the jury on the afternoon of February 2, 1942, at about 3:30 P.M., the parties announced to the Court that there would be three attorneys on each side to argue the case and the Court allowed by agreement two hours to each side for argument. Mr. George Ritchie, one of the attorneys for Respondents opened the argument and following him, Mr. Sidney Samuels, one of the Petitioner's attorneys, addressed the jury. Thereupon, the Court adjourned for the day, and after properly admonishing the jury, instructed all parties to be in Court at 9:00 A.M. the following morning, February 3. After such recess, the Court discovered what he considered to be a faulty omission in the wording of the Special Issues read to the jury in that there was not excluded from their consideration in arriving at the values of the property in question the existing mineral leases on the property. This omission had been objected to by the Petitioner in its written exceptions to the charge theretofore filed but the exception was somewhat veiled, and had escaped the Court's attention. Therefore, the Court had the entire charge re-written to include such omission in the special issues, otherwise leaving the charge the same. (Italics ours).

"At 9:00 A.M. on February 3, 1942, the Court advised the parties, not in the presence of the jury, that he proposed to withdraw the charge already read to the jury (but which had been at all times in the possession of the Clerk) and to read them the amended charge. Mr. Sidney Samuels was not in Court although the case had not been concluded, and he had apparently left the county voluntarily on account of other business. Mr. Fred Arnold, one of the attorneys for Petitioner had taken the lead in the trial of the case, particularly in the examination of witnesses, and the Petitioner had not heretofore advised the Court as to any one of its attorneys being `leading counsel'. The Court at the time of making the announcement with reference to the new charge, advised counsel for all parties and particularly Mr. Fred Arnold and Mr. T. T. Bouldin, Attorneys for Petitioner, that he would give them such reasonable time as might be required for them to prepare and file any new objections and exceptions to such charge and would give them additional time for argument if they desired and furthermore, would give Mr. Samuels the opportunity of re-arguing the case if they would call him to come out to Palo Pinto...