City of Floydada v. Gilliam
| Decision Date | 06 December 1937 |
| Docket Number | No. 4829.,4829. |
| Citation | 111 S.W.2d 761 |
| Parties | CITY OF FLOYDADA v. GILLIAM et al. |
| Court | Texas Court of Appeals |
Appeal from Floyd County Court; Tom W. Deen, Judge.
Condemnation proceeding by the City of Floydada against J. C. Gilliam and others. Judgment granting an easement rather than a fee in the property condemned, and plaintiff appeals.
Affirmed.
Winfred Newsome, of Floydada, and Griffin & Morehead, of Plainview, for appellant.
L. G. Mathews, of Floydada, for appellees J. C. Gilliam and wife.
A. M. Frazier and Joe T. Goodwin, both of Dallas, and Charles C. Hampton, of Amarillo, for appellee Home Owners' Loan Corporation.
This is an appeal from the final judgment of the county court in a condemnation proceeding brought by appellant, the City of Floydada, against appellees, J. C. Gilliam and wife, and the Home Owners' Loan Corporation. Appellant filed its petition at the June term, 1936, praying for the appointment of commissioners to assess the value of 425 square feet of land located in the front yard of Gilliam and wife, abutting upon a street which constituted state highway No. 207. The commissioners were appointed and assessed appellees' damages at the sum of $150. The Home Owners' Loan Corporation held a lien upon the property to secure a loan of $2,074.64, and at the September term, 1936, appellees filed their objections to the award of the commissioners, and specially objected to the amount allowed by them as damages to the property, alleging the damages to be the sum of $1,510, and gave notice of appeal to the county court. Proper notice of the appeal was served upon the appellant, and it filed its answer on November 30, 1936, which consisted of a large number of special exceptions, all of which were overruled, a general denial, and special plea in which it sought to uphold the award of the commissioners, concluding with a prayer that it have its highway and street easement over the lands of appellees.
The case was tried before a jury and submitted upon three special issues, in answer to which the jury found that the cash market value of the strip of land at the time it was condemned was $50; that the cash market value of the balance of the tract immediately before the strip was taken for highway purposes was $2,500; and that the cash market value of the tract remaining after the strip was taken for highway purposes was $1,300. Upon the filing of a remittitur of $100 by appellees, the court rendered judgment in their favor in the sum of $1,150. Appellant filed its motion for new trial, which was overruled, and it has perfected its appeal to this court.
The case is presented here upon two assignments of error, both of which refer to the same subject-matter, and in which appellant assigns error of the trial court in decreeing to it only an easement over the property and in refusing to render judgment vesting it with title in fee to the strip of land condemned.
The proceedings of condemnation were conducted under the provisions of article 1109b, R.C.S., 1925, giving to incorporated cities and towns of less than 5,000 inhabitants the power to appropriate private property for public purposes whenever the governing authorities shall deem it necessary to do so. The article provides that the power of eminent domain shall include the right of the governing authorities "when so expressed" to take the fee in the lands so condemned. In its motion for a new trial appellant complained of the judgment because it decreed to appellant only an easement in the land condemned, and alleged that the law entitled it to a judgment for the fee, or the land itself. The portion of the judgment complained of is as follows: "It is further ordered, adjudged and decreed by the court that the hereinafter described tract of land belonging to the defendants be and the same is hereby declared to be condemned to plaintiff, the City of Floydada, for street and highway 207 purposes, its agents, counsels, commissions, for the purpose of constructing and perpetually operating, maintaining and using the same for street and highway purposes. * * *"
It is obvious the provisions of the judgment fall short of a fee-simple title, but it would seem that it is sufficient for all practical purposes and decrees to appellant all of the interest, rights, and privileges that could be used or would be necessary for the maintenance of...
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