Brinton v. Houston Lighting & Power Co.

• Decision Date: 17 June 1943
• Docket Number: No. 11540.,11540.
• Citation: 175 S.W.2d 707
• Parties: BRINTON et al. v. HOUSTON LIGHTING & POWER CO.
• Court: Texas Court of Appeals

175 S.W.2d 707

BRINTON et al. v. HOUSTON LIGHTING & POWER CO.

No. 11540.

Court of Civil Appeals of Texas. Galveston.

June 17, 1943.

Rehearing Denied December 2, 1943.

Appeal from Brazoria County Court; Floyd Enlow, Judge.

Suit by the Houston Lighting & Power Company against Ina Brinton and another to condemn an easement across a tract of land. From a judgment condemning the easement and awarding compensation to defendants, they appeal.

Reversed and remanded for a new trial.

Walter F. Brown, of Houston, for appellants.

Cleveland Davis, of Angleton, and Tom M. Davis and W. E. Junell, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

GRAVES, Justice.

This is a condemnation suit brought by Houston Lighting & Power Company against Ina Brinton and Altus Pyburn, her lessee, to condemn an easement 5,284 feet long and 80 feet wide across a tract of land containing 640 acres.

Judgment was rendered condemning the property sought to be condemned, and awarding to Ina Brinton $117.60 and to Altus Pyburn $2.40. The appellants, Ina Brinton and Altus Pyburn, duly filed their motion for new trial and their amended motion for new trial, in which amended motion they presented all the assignments of error covered by their brief on this appeal. The amended motion for new trial was overruled, and appellants have perfected their appeal to this court, submitting for its consideration 119 points as to alleged errors.

The first five of these presentments here — from as many detailed approaches, as being applicable to different procedural features — comprehend the one structural objection that the judgment in condemnation as to both appellants was wrong — indeed, that the court had no jurisdiction to enter it — because it was conclusively shown that the appellee had never agreed with either appellant, prior to the institution of its condemnation proceedings against them, nor made any bona fide effort to agree with either, as to the value of her or his lands to be condemned, or as to the damages he or she would suffer by such a condemnation; that such an attempt to agree with the lessor, Mrs. Brinton, as well as the lessee, Mr. Pyburn, was an essential prerequisite, under Title 52, Article 3264, Vernon's Civil Statutes of Texas, governing the exercise of the right of eminent domain within its borders, to the acquisition of jurisdiction to condemn such an easement over land as formed the subject matter of this judgment.

As authority for such position, appellants, in addition to the statute referred to, cite, among others, these holdings of the courts: Atkins v. Davis, Tex.Civ.App., 291 S.W. 968; Porter v. City of Abilene, 4 Willson Civ.Cas.Ct.App. § 157, 16 S.W. 107; Clements v. Ft. Worth & D. S. P. R. Co., Tex. Civ.App., 7 S.W.2d 895; Ryan v. State, Tex.Civ.App., 21 S.W.2d 597; Watt v. Studer, Tex.Civ.App., 22 S.W.2d 709; Malone v. City of Madisonville, Tex.Civ.App., 24 S.W.2d 483; Easter Oil Corp. v. Wilbarger County, Tex.Civ.App., 30 S.W.2d 438; Isaac v. City of Houston, Tex.Civ. App., 60 S.W.2d 543, 546; Clower v. Fannin-Lamar-Delta Counties Levee Imp. Dist., Tex.Com.App., 39 S.W.2d 831, 833; State v. Davis, Tex.Civ.App., 139 S.W.2d 638; Houston North Shore R. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793, 108 A.L.R. 1508.

If this initial position of the appellants upon the whole controversy as now at this bar is correct, it obviously would be a work of supererogation for this court to inquire further, or dispose of any of the great number of remaining assignments.

Upon consideration of the record, it is concluded that appellants' position is well taken — that the record does conclusively if not undisputedly show that no such preliminary agreement as to the stated values was ever had or sufficiently undertaken with either appellant; indeed, appellee admits that no such agreement, or attempt to make one, was made with the appellant Pyburn, upon the consideration that he was a mere short-term lessee of his coappellant's land, and that, since it had, prior to instituting the condemnation proceeding, "made a proper effort to acquire the easement from Mrs. Brinton by agreement", which effort had failed, and since the condemnation proceeding had therefore become inevitable anyway, it was "not necessary before filing the suit to attempt to agree with a short-term lessee of the property", towit, appellant Pyburn.

So that, issue was only joined, both below and on appeal, between the parties as to whether or not such "a proper effort to acquire the easement from Mrs. Brinton by agreement", or, as appellant puts it, "an agreement or bona fide attempt to agree with her as to the value of her land to be condemned, or as to the damages which she would suffer by reason of the condemnation, in advance of a filing of such proceeding", had been made.

The pleadings and the evidence touching this single resulting inquiry appear to make it a simple one. At the outset, the appellee conceding that no...