Cameron County Water Control and Imp. Dist. No. 5 v. George

• Decision Date: 08 September 1961
• Docket Number: No. 5,No. 3637,A,5,3637
• Citation: 349 S.W.2d 308
• Parties: CAMERON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICTppellant, v. James M. GEORGE et ux., Appellees.
• Court: Texas Court of Appeals

Page 308

349 S.W.2d 308

CAMERON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT No. 5, Appellant, v. James M. GEORGE et ux., Appellees.

No. 3637.

Court of Civil Appeals of Texas, Eastland.

Sept. 8, 1961.

Rehearing Denied Sept. 29, 1961.

Cunningham, Garza & Yznaga, Brownsville, for appellant.

Johnson, Hester, Jenkins & Toscano, Harlingen, L. G. Mathews, Brownsville, for appellees.

COLLINGS, Justice.

This suit was brought by Cameron County Water Control and Improvement District Number 5 against James M. George and wife, Roxanna George, seeking a declaratory judgment establishing plaintiff's right to use 7.89 acres of land belonging to the defendants for a storage reservoir. Plaintiff's claim of right to so use defendants' land was based upon reservation under the terms of a warranty deed dated January 8, 1924, by which defendants acquired fee simple title to their 22.38 acre tract of land, including the 7.89 acres in controversy. The case was tried before the court without a jury. It was held by the court that the defendants were the owners of the fee simple title to the land involved; that the plaintiff Cameron County Water Control and Improvement District Number 5 had no right under the provisions of the warranty deed dated January 8, 1924, to use defedants' land for a storage reservoir; that plaintiff water district prior to the bringing of this suit instituted a condemnation proceeding in the County Court for the 7.89 acre tract; that commissioners were apppointed and an award of $897.25 was made on June 14, 1950; and plaintiff entered and took possession of said land under such condemnation proceeding; that plaintiff therefore has a permanent easement to use the land for the storage and distribution of water by reason of the condemnation proceeding; that defendants James M. George and wife were entitled to recover from plaintiff the value of the lands taken at the time of the entry thereon by plaintiff water control district together with interest from the date of said entry at the rate of 6% per annum, 'which said amount should be determined by the County Court at Law of Cameron County, Texas, in its final judgment to be entered in the condemnation suit now pending' in said court. Plaintiff Cameron County Water Control and Improvement District Nember 5 has appealed.

The parties have stipulated in substance as follows:

'That the plaintiff and defendant herein, Cameron County Water Control & Improvement District No. 5 and James M. George and wife, Roxanna George are one and the same parties as the condemnor and condemnee in a certain condemnation proceeding being No. 8126 in the County Court at Law of Cameron County, Texas.

'That said condemnation proceeding * * * in the County Court at Law * * *, was filed in the year 1950 and is now pending and has not been disposed of.

'That the tract of land described in the Plaintiff Water District's Original Petition, being * * * a 7.89 acre tract * * * which is the subject matter of this suit * * *, is * * * the same * * * land which the Cameron County Water Control & Improvement District No. 5 is seeking to condemn * * * in the County Court at Law of Cameron County.

'That Cameron County Water Control & Improvement District No. 5, sometime between 1950 and 1954, entered into possession of said 7.89 acres of land * * * and has continued in possession thereof to the exclusion of the defendants until this day.

'That there is on file in such condemnation proceeding * * * the Motion of the Plaintiff Water District to dismiss such condemnation, they having attached to such Motion a deed under which they allege that they are claiming title to the property and now alleging as their reason for possession thereof, the same being identical with the deed attached to the Plaintiff Water District's Petition in this case * * *.'

The warranty deed of January 8, 1924, covering 22.38 acres, under which appellant claims the right to use the land here involved for a storage reservoir, is from James-Dickinson Farm Mortgage Company to James M. George and wife. The deed recites that the entire tract conveyed...