City of La Grange v. Pieratt, 8128.

Decision Date10 November 1943
Docket NumberNo. 8128.,8128.
Citation175 S.W.2d 243
CourtTexas Supreme Court

Theo. W. Lueders, City Atty., and Edw. H. Moss, both of LaGrange, for plaintiff in error.

C. C. Jopling, of LaGrange, for defendants in error.

CRITZ, Justice.

This suit was instituted in the District Court of Fayette County, Texas, by H. C. Pieratt and wife against the City of LaGrange, to recover damages consisting of the loss of profits from Pieratt's business as owner and operator of a gasoline filling station, situated on a lot abutting on State Highway No. 71. Such highway at the point in question here was also a public street of the City. Pieratt's loss was occasioned by the temporary obstruction of such highway for several months, while it was being widened, paved, and otherwise reconstructed and improved by the State Highway Department, acting under authority of a contract with the City. Under this contract the State Highway Department did the work and paid the cost of the improvement. For the purposes of this opinion we will assume, without deciding, that the City lawfully assumed direct and original liability for all damages accruing to abutting property owners. This contract is purported to have been made under and by authority of Article 6673 — b, Vernon's Annotated Civil Statutes, Acts 1939, 46th Leg., p. 581. Trial in the district court, before the court without the intervention of a jury, resulted in a judgment for the City. This judgment was reversed by the Austin Court of Civil Appeals, and this cause remanded to the district court for a new trial. 171 S.W.2d 377. The City brings error.

It appears from the record before us that the State Highway Department desired to pave and improve the part of Highway No. 71 here involved. As already shown, such part was one of the public streets of the City of LaGrange. The City passed an ordinance whereby the Mayor was authorized to execute a contract on behalf of the City with the State Highway Department. By the terms of this ordinance the State Highway Department was authorized to pave and otherwise improve this street project in the manner, at the location, and according to a contract attached to such ordinance and made a part thereof. The contract provided by the ordinance was duly entered into by the City and the State Highway Department. As we understand this record, this contract showed the character of these improvements, and same were known, or could have been known, to Pieratt during all the time here involved.

The plans for the improvement of this street called for widening it, and such widening project called for the taking of a part of the land which Pieratt then owned, and on which he was operating a filling station. The City entered into negotiations with Pieratt to purchase such land, and made him an offer therefor. Pieratt refused such offer, and the City filed statutory condemnation proceedings in the County Court of Fayette County. The county court appointed commissioners to hear and determine the damages accruing to Pieratt. We assume that such commissioners were clothed with the power and charged with the duty of determining all lawful damages, direct and consequential, accruing to Pieratt on account of the condemnation of this land.

The commissioners set this matter for hearing on a certain date. Pieratt waived notice, and a hearing was had; at which all parties appeared and participated. The commissioners then duly made their report. By the terms of this report Pieratt was allowed damages as follows: "$100.00 moving house, $100.00 moving tanks, $20.00 rebuilding toilet, $50.00 for lights, $150.00 for placing gravel, and $100.00 for land and damages, * * *."

The above-described commissioners' report also recites that:

"And that on October 7th, 1940, upon the day and at the place so appointed for hearing, and said parties appearing in person and by attorneys and offering evidence, we proceeded fully to hear evidence as to the value of property sought to be condemned, to wit: Mabel Pieratt, (Description same as in preceding exhibit, page 16,) and as to damages which will be sustained by the owner, by reason of such condemnation, * * *."

The above report was duly returned to and approved by the county court. It was never appealed from by either party, and the damages therein assessed have been duly paid to and accepted by Pieratt. The date of the above report is October 8, 1940.

The record does not inform us as to just what claims for damages were made by Pieratt before the commissioners. The report of the commissioners, which was approved by the county court, and which was thereafter accepted by Pieratt by accepting the amount of damages therein awarded to him, and not appealing therefrom, shows that the commissioners considered and allowed damages for the value of the property taken from Pieratt, and that such commissioners further took into consideration, in assessing such damages, "damages which will be sustained by the owner by reason of such condemnation, * * *." As we interpret the above report, it shows, as a matter of law, that the commissioners considered and awarded compensation for all elements of damage, direct and consequential, which the law contemplates in such a proceeding.

The work of improving this street was done by a contractor, substantially in accordance with the contract submitted to the City by the State Highway Department. This contract was attached to the ordinance authorizing the Mayor to enter into it on behalf...

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