City of Abilene v. Downs

• Decision Date: 17 April 1963
• Docket Number: No. A-9258,A-9258
• Citation: 367 S.W.2d 153
• Parties: CITY OF ABILENE, Petitioner, v. John F. DOWNS et al., Respondents.
• Court: Texas Supreme Court

Page 153

367 S.W.2d 153

CITY OF ABILENE, Petitioner, v. John F. DOWNS et al., Respondents.

No. A-9258.

Supreme Court of Texas.

April 17, 1963.

Rehearing Denied May 15, 1963.

John W. Davidson and Les Cochran, Abilene, for petitioner.

Brooks & Fergus, Abilene, Geo. D. Jones, Abilene, with above firm, for respondents.

STEAKLEY, Justice.

A recovery for Respondents against the City of Abilene, Petitioner, for damages to their farms resulting from the operation of Petitioner's newly constructed sewage disposal plant was affirmed by the Court of Civil Appeals. Tex.Civ.App., 359 S.W.2d 642. We granted the application of Petitioner for writ of error to review the decision of the Court of Civil Appeals with respect to Petitioner's application for change of venue and Petitioner's pleas of limitation.

APPLICATION FOR CHANGE OF VENUE

Respondents, John F. Downs, Vena Powers et al., and F. D. Shotwell et al., filed separate suits against Petitioner in June and in October, 1960. The suits were for damages to their farms resulting from Petitioner's sewage disposal plant which commenced operations on July 10, 1958. The cases were originally set for trial in December, 1960, but were continued on motion of Petitioner and reset for trial on March 20, 1961. Prior thereto, on February 6, 1961, the causes were consolidated upon motion of Respondents. Trial of the consolidated cases was continued by agreement and reset for March 27, 1961. Again, at the request of Petitioner, the consolidated case were reset for trial on April 17, 1961, on which date a jury panel was ordered, with no other case set for trial. Respondents filed their first amended original petition on April 6, 1961. On April 17, 1961, at 8:50 a. m., Petitioner filed an application for change of venue. Petitioner and Respondents announced ready for trial, after which Petitioner urged its application for change of venue. Respondents did not file an affidavit controverting the application for change of venue as required by Rule 258, Texas Rules of Civil Procedure. The court directed the parties to proceed with the examination of the jury panel and thereafter overruled the application. On May 9, 1961, subsequent to the trial of the cases, Respondents requested findings and conclusions with respect to the order of the court overruling the application for change of venue, in response to which the court filed findings and conclusions amending its original order overruling the application and making the findings and conclusions a part of the order. Among other things, the court found that the motion was not timely filed; that it was filed at such a time as to cause delay and disruption of the court's docket; that the special setting on April 17, 1961, was at the request of Petitioner; and that at no time did Petitioner apprise the court of its intention to seek a change of venue.

Rule 258, T.R.C.P., provides as follows:

'Where such application for a change of venue is duly made, it shall be granted, unless the credibility of those making such application, or their means of knowledge or the truth of the facts set out in the said application are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge, and the application either granted or refused.'

Rule 258 by its terms is mandatorily operative. It provides the only means by which issue can be joined. The affidavit of a credible person attacking the application for a change of venue in the respects specified in Rule 258 is prerequisite to the invocation of the discretionary powers of a trial judge to determine if the applicant can obtain a fair and impartial trial; if the affidavit is not filed, the trial judge is required to remove the cause pursuant to Rule 258 or, if applicable, Rule 260. Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395, wr. ref. w. o. m.; Taylor v. Batte, Tex.Civ.App., 145 S.W.2d 1116, no writ hist. The fundamental principle involved was stated in Freeman v. Ortiz, Tex.Civ. App., 136 S.W. 113, affirmed 106 Tex. 1, 153 S.W. 304:

The purpose of a change of venue is that the parties to a suit may obtain a fair and impartial trial, for a judgment obtained without such a trial is a travesty upon justice and, if upheld, a disgrace to the law.'

Rule 258 presupposes, and we think properly, that a change of venue is necessary in the interests of justice if the application therefor stands unchallenged in the manner prescribed.

The trial judge was therefore under the duty of removing the cases pursuant to Petitioner's application for change of venue and this cause must be reversed and remanded for this purpose, and for other reasons now to be discussed.

We preface our discussion of Petitioner's pleas of limitation with the following explanatory comments. In resolving Petitioner's point of error urging that Respondents' suits were barred by the twoyear statute of limitations, we are required to review the holding of the Court of Civil Appeals in City of Abilene v. Bailey, 345 S.W.2d 540, in which we refused the application for writ of error with the notation 'no reversible error.' This is notwithstanding that here, as in Bailey, under the factual situations involved, the basic question of the essential elements of a cause of action to support a recovery for a taking or damaging of private property for a public use under Article I, Section 17 of the Constitution, Vernon's Ann.St., was not properly preserved for review by this Court. This is recognized by Petitioner in its supplemental brief filed herein, in which it is stated that Petitioner's point of error presenting this problem was not carried forward in its motion for rehearing in the Court of Civil Appeals in Bailey, and was dropped in the instant case because of our refusal of the application for writ or error in Bailey. Also, as will be later developed, our holdings with respect to Petitioner's plea of limitation require, in turn, consideration of Petitioner's point of error attacking the form of the issues submitted by the court to determine the question of damages.

PETITIONER'S PLEAS OF LIMITATION

The original petition of Respondent Downs was filed on June 17, 1960, and the petitions of Respondents Powers and Shotwell were filed October 20, 1960. Citations were issued in the cases on October 25, 1960.

Respondents alleged in their first amended petition that the sewage disposal plant of Petitioner began operation on or about June 30, 1958, and that on or about November 6, 1959, the operations reached full capacity; that at this time, and afterwards, 'the obnoxious fumes and obnoxious noxious odors which spread across and invaded the property and buildings became so offensive as to make their premises unfit for continuous habitation; that such odors from and after the date hereinabove set out being generated on and originating from the sewage disposal plant of the defendant have become so offensive and collect on the property of these plaintiffs that their property has been diminished in value and damaged as hereinafter set out in violation of Section 17, Article One of the Constitution of Texas.' Respondents also alleged that 'the incidence of mosquitoes and flies has multiplied so that the land and premises of these plaintiffs is no longer a desirable place to live or economically sound for use as a stock farm and that these plaintiffs' property has been diminished in value.' It is thus seen that the purport of the allegations of Respondents was that the operations of the plant constituted a nuisance on or about November 6, 1959, when the operations of the plant reached full capacity, entitling Respondents to damages under Section 17 of Article I of our Constitution which provides that 'No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * *.'

Petitioner in its answer alleged by way of affirmative defense that Respondents' causes of action were barred by the twoyear statute of limitation 'in that the permanent damage claimed to plaintiffs' land, if any, occurred when the defendant constructed and placed its sewage disposal plant in operation on or about July, 1958 * * * and further * * * the permanent damage claimed by Plaintiff to his land occurred when such damage became apparent because of the construction and operation of defendant's said plant.' The purport of Petitioner's defensive plea of limitation was that the conditions creating the nuisance and the right to damages, if such existed, arose when the plant was first placed in operation in July, 1958, rather than, as alleged by Respondents, when the plant reached full operations on or about November 6, 1959.

The Water and Sewer Superintendent for Petitioner testified that the sewage disposal plant processed 3,554,000 gallons upon commencement of operations on July 10, 1958; that the flow on July 17, 1959, was 5,698,000 gallons; that the average daily flow in 1960 was 6,500,000 gallons, and that on or about November 6, 1959, the last flow to the old sewer farm was taken off and transferred to the new sewage disposal plant.

The trial court submitted the liability issue in terms of the plant causing objectionable matter, such as noxious fumes, odors or insects to come upon the farms of Respondents; the damage issue in terms of whether the objectionable matter caused depreciation in the market value of Respondents' farms and whether such damage was permanent; the issues to determine the amount of damages in terms of the reasonable cash market value of the farms immediately prior and immediately after the beginning and completion of the depreciation in value; and the limitation issue in terms of when Respondents had knowledge that their lands were damaged.

The Court of Civil Appeals upheld the manner of submission of the liability issue and stated that the City is liable under the Constitution for diminution in market value of land resulting from...