Brown v. Lower Colorado River Authority, 11994
| Decision Date | 20 September 1972 |
| Docket Number | No. 11994,11994 |
| Parties | W. C. BROWN et al., Relators, v. LOWER COLORADO RIVER AUTHORITY, Respondent. |
| Court | Texas Court of Appeals |
McKay & Avery, Michael A. Wash, John M. McKay, Austin, for relators.
Mac Umstattd, Small, Herring, Craig & Werkenthin, Fred B. Werkenthin, Austin, for respondent.
Relators are owners of approximately 418 acres of land lying in Travis and Bastrop Counties and seek to enjoin temporarily the Lower Colorado River Authority from taking possession of a right of way 200 feet wide across relators' land for location of a transmission line to distribute electric energy.
Special commissioners, appointed in Travis County to assess damages occasioned by condemnation of the easement, awarded relators $13,500, after which relators filed their objections and exceptions to the award in County Court at Law. The Authority thereafter was permitted by the trial court to deposit the amount of the award and to take possession of the condemned right of way preparatory to erecting the electric transmission line. Relators sought a temporary injunction before the trial court to restrain the Authority from removing trees from the land and performing other work preliminary to actual construction of the transmission line. The trial court denied relators' application for injunction, and relators perfected their appeal to this Court.
Relators are before this Court, however, in an original proceeding seeking to restrain the Authority temporarily pending hearing on relators' appeal.
Relators allege that the respondent has gone upon 'relators' land and threatens, and is about to scrape and gouge relators' land bare of any and all growth, and threatens, and is about, to totally destroy numerous budded pecan trees which stand in the path of the 200 wide easement.' Relators say that they 'fear the subject matter of . . . (their) appeal, i.e., the undisturbed land in its present state, will be destroyed and relators caused to sustain great and irreparable damage and injury to their land unless . . .' respondent is restrained.
The general rule governing a hearing on an application for temporary injunction limits the court to the question of the applicant's right to preservation of the Status quo of the subject matter of the suit pending a final trial on the merits. Transport Company of Texas et al. v. Robertson Tranports, Incorporated et al., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). 'To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury . . . (and) is not required to establish that he will finally prevail in the litigation.' (261 S.W.2d 552, and authorities cited).
Temporary injunction in condemnation cases is an appropriate remedy 'when there is a threatened taking in any proceeding which may be void for any reason.' Lone Star Gas Company v. City of Fort Worth et al., 128 Tex. 392, 98 S.W.2d 799, 801 (1936). Examples of void condemnation proceedings stated by the Supreme Court in that case are those (1) conducted under an inapplicable statute, or (2) under a statute which is unconstitutional, or (3) where the property sought to be taken is not within the area in which the condemning authority has power of eminent domain.
Relators assert in general terms that certain requirements of Article 3264, Vernon's Ann.Tex.Civ.St., have not been met and that therefore the proceedings are void. It is settled that if the condemnation proceedings pending in the county court at law are void for want of power or jurisdiction, such...
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