City of Austin v. Hall

• Decision Date: 08 October 1969
• Docket Number: No. 11674,11674
• Citation: 446 S.W.2d 330
• Parties: CITY OF AUSTIN, Appellant, v. Maurice D. HALL, Appellee. . Austin
• Court: Texas Court of Appeals

Page 330

446 S.W.2d 330

CITY OF AUSTIN, Appellant, v. Maurice D. HALL, Appellee.

No. 11674.

Court of Civil Appeals of Texas Austin.

Oct. 8, 1969 Appellant's and Appellee's Rehearing Denied Oct. 29, 1969.

H. Glenn Cortez, City Atty., Austin, Sears & Burns, Robert L. Burns, Houston, for appellant.

E. Wayne Thode, Salt Lake City, Utah, Byrd, Davis, Eisenberg & Clark, Tom H. Davis, Austin, for appellee.

O'QUINN, Justice.

This lawsuit began in April, 1953, with a condemnation proceeding filed by the City of Austin to acquire about half an acre of land for 'interregional Highway,' traversing the city from its north limits to its south limits, and for 'an interesecting street thereto .'

The case is on appeal from a judgment entered by the trial court in November, 1968, dismissing the petition in condemnation as to part of the land, and leaving to be determined in a separate hearing the issue of damages for the taking of the remaining portion of the tract.

The trial court made no findings of fact but impliedly found that as to that part of the land not presently devoted to highway purposes the city council's exercise of the right to condemn was excessive and arbitrary because the council sought to condemn more land than was needed for the purpose for which the proceeding was instituted.

The City of Austin has appealed and relies upon three points of error.

We reverse and render judgment of the trial court and remand the cause for further proceedings in accordance with instructions stated in this opinion.

The petition in eminent domain filed by the City on April 30, 1953, described a tract of land belonging to Maurice D. Hall consisting of 0.57 of one acre and measuring about 100 feet by 250 feet. The petition recited that the City, acting through its city council, had determined that it was necessary 'to open, establish, construct, and maintain a public street, highway and freeway (commonly known as 'Interregional Highway') extending (through the City) * * * and to open, establish, construct and maintain streets intersecting therewith * * *.' The determination by the City was in the form of a resolution adopted by the council the same date the petition was filed.

With specific reference to the Hall tract, the petition alleged that the city council 'has determined and found that the (Hall) tract of land * * * is suitable for such purposes and that in the furtherance of the public interest it is necessary to open, establish, construct and maintain such street, highway and freeway and a street intersecting therewith over and across said land.'

It is undisputed that approximately the eastern half of the Hall tract has been incorporated in the highway right-of-way proper and is now occupied by Interregional Highway 35 traversing the City of Austin. The western portion of the Hall tract at the time of hearing before the trial court had not been occupied either by the highway or by an access or intersecting street.

On motion of Hall, the trial court in April 1967, ordered '* * * that a separate trial be held on the issues of whether * * * the City had the right to condemn that portion of the tract (that) * * * has not been used for the Interregional Highway or whether the exercise of the * * * right to condemn was excessive and arbitrary.' Pursuant to the order, a hearing was held in May, 1968, and the trial court entered judgment November 5, 1968, dismissing the City's petition as to the western portion of the Hall tract and ordering that as to that part of the land 'the relief sought by the City of Austin is denied and it shall take nothing.'

By this judgment the trial court undertook to dispose finally of the City's effort to condemn the western part of the Hall tract and to leave for determination at a later hearing the question of damages for the taking of the eastern portion occupied by Interestate Highway 35.

On appeal the City contends under three points of error:

(1) That Hall consented to the taking of his land and waived the right to question the City's determination of necessity by entering an appearance before the special commissioners and by withdrawing the $2,000 award made by the commissioners.

(2) That Hall failed to meet the burden of proving that the City's determination of necessity to condemn the land was arbitrary, capricious, or fraudulent.

(3) That Hall abandoned his objections to the award of the special commissioners by unreasonable delay of more than eleven years in prosecuting the issue of market value of his land.

The special commissioners award Hall the sum of $2,000 on May 15, 1953. Hall filed objections to the award on May 18 alleging that the sum of $2,000 was not adequate compensation. Hall's objections demanded '* * * adequate compensation for his property because possession has already been taken of said property by the City of Austin without his consent and the City of Austin is Applying this property to public use * * *. (Emphasis added.) Hall made no allegation that the action of the City in determining necessity for the taking was fraudulent, excessive, or arbitrary.

On the same day the commissioners made the award the City deposited the sum of $2,000 in the registry of the court and took possession of the Hall property. Hall filed application to withdraw the award on November 4, 1953, and stated that the application was '* * * without prejudice to and without waiving His right to further contest the amount of the Commissioners' award, and still insisting upon each and every right and demand which may be further secured to (Hall) by further proceedings herein * * *' (Emphasis added.)

The City contends that by accepting the award of the commissioners, Hall consented to the taking and thereafter could not contend that the taking was unlawful. Hall's position is that this well-established rule is inapplicable in this case because of an agreement between the parties filed at the time the award was withdrawn.

The agreement, which was not dated, but filed in November, 1953, provided:

'It is hereby agreed between the City of Austin and Maurice D. Hall that Maurice D. Hall may withdraw the $2,000.00 deposited in Court by the City of Austin in the above styled and numbered cause, the amount being equal to the award of the Commissioners in this cause, and it is further agreed that such withdrawal by Maurice D. Hall is without prejudice to the right of Maurice D. Hall to further proceed in the cause in the same manner as though such sum had not been withdrawn; and

It is further agreed that in the event the said Maurice D. Hall should finally recover an amount in excess of $2,000.00, the said Maurice D. Hall hereby waives the right to all interest on the first $2,000.00 of such final recovery.'

In authorizing withdrawal of the award, the court entered an order in pertinent part providing:

'* * * came on to be heard (Hall's) * * * application for withdrawal of the * * * award * * * and it appearing that such withdrawal has been agreed to by the City * * * as set forth in the 'Agreement of Withdrawal of Award and Partial Waiver of Interest' * * * and that such application should be granted without prejudice to the rights of * * * (Hall) to further proceed in this cause:

It is accordingly Ordered that the Clerk be, and she is hereby directed to pay over to * * * (Hall) the sum of $2,000, being the amount of the award on deposit, and it is FURTHER ORDERED that such withdrawal * * * shall not operate as a waiver in any respect by * * * (Hall) of any * * * (his) rights.'

Hall contends that because of the agreement of the parties and the order of the court approving withdrawal of the award, his right to challenge '* * * the alleged necessity for taking his entire tract is precisely the same as if he had not withdrawn the $2,000.'

We do not agree with this contention. We conclude that Hall consented to the taking and cannot be permitted to retain his compensation and at the same time assert that the City had no right to take his tract under power of eminent domain. In our opinion, when examined in light of the related facts the agreement amounted to no more than assent of the City to withdrawal of the award without prejudice to Hall's right to contend that the award did not provide adequate compensation for loss of his land.

At the time the award was made by the commissioners in 1953, the law as declared by the courts of this State was that the condemning authority could restrain the landowner from withdrawing the award money deposited with the court, and that the landowner withdrawing a deposit waived his right to trial on his objections '* * * unless he has a distinct understanding to the contrary with the condemnor.' These declarations of the law were made in Carter v. City of Houston, Tex.Civ.App., 255 S.W.2d 336, on February 5, 1953, three months before the Hall award, and in Thomas v. Housing Authority of City of Dallas, Tex.Civ.App., 258 S.W.2d 428, in an opinion handed down on May 15, 1953, the same day the commissioners made the award of $2,000 to Hall.

Some time between May 15, 1953, and November 4, 1953, when the deposit was withdrawn by Hall, the City made an agreement with Hall consenting to withdrawal of the award '* * * without prejudice to the right of Maurice D. Hall to further proceed * * * in the same manner As though such sum had not been withdrawn * * *' (Emphasis added.)

In view of the holding in Thomas v. Housing Authority, the City in making the agreement with Hall supplied the 'distinct understanding' that it would not insist in county court that by accepting the award Hall had waived his right 'to proceed further' on his objections to the adequacy of the award.

It was not until December 16, 1953, after the agreement had been made and Hall had withdrawn the award, that the Supreme Court reversed the decision of the court of civil appeals in Thomas v. Housing Authority and held that the landowner could withdraw the deposit made by the...