City of Houston v. Adams

• Decision Date: 11 May 1955
• Docket Number: A-4854,Nos. A-4840,s. A-4840
• Citation: 279 S.W.2d 308,154 Tex. 448
• Parties: CITY OF HOUSTON, Petitioner, v. Mary E. ADAMS, Respondent. CITY OF HOUSTON, Relator, v. Honorable Roy F. CAMPBELL, Respondent.
• Court: Texas Supreme Court

Page 308

279 S.W.2d 308

154 Tex. 448

CITY OF HOUSTON, Petitioner, v. Mary E. ADAMS, Respondent.

CITY OF HOUSTON, Relator, v. Honorable Roy F. CAMPBELL, Respondent.

Nos. A-4840, A-4854.

Supreme Court of Texas.

May 11, 1955.

Rehearing Denied in No. A-4854 June 8, 1955.

Will G. Sears, City Atty., and Richard H. Burks and Robert L. Burns, Senior Asst. City Attys., Houston, for City of Houston, for petitioner.

Vinson, Elkins, Weems & Searls, C. E. Bryson and Ben H. Rice, III, Houston, for respondents.

GRIFFIN, Justice.

A history of the litigation presented by the two above causes is as follows:

In January of 1954, Mrs. Mary E. Adams, a feme sole, filed her suit in a district court of Harris County, Texas, in which, among other things, she alleged that the City of Houston and the Gulf Bitulithic Company were constructing a drain and storm sewer which would discharge an undue amount of water across her four-acres tract of land upon which she lived and sought an injunction to prevent such practice. Only the City answered, and in due time a hearing was had on January 22, 1954. The trial judge entered his order restraining and enjoining the defendants (City and Gulf) 'from emptying water and other matter from the storm sewer now being constructed by said defendants, or one of them, onto the property of said plaintiff * * *,' and fixed amount of bond to be given by Mrs. Adams. Mrs. Adams gave the bond and a temporary writ issued. No appeal was taken from this order. Gulf Bitulithic Company never has taken any part in these proceedings nor filed any pleadings.

It is stipulated that thereafter on some date between January 26, 1954 and February 5, 1954, the City filed its first amended orginal answer and cross-action wherein it lodged a number or exceptions to Mrs. Adams' pleadings; a general denial; pleadings joining issue as to the amount of water which will be discharged over Mrs. Adams' land by virtue of the construction of the sewer; and a cross-action seeking recovery of a natural easement for drainage and flow of surface waters across Mrs. Adams' land; condemnation of additional drainage rights across the land and 'that it be permitted to immediately enter upon such rights and take possession of such rights and easements and exercise the same, upon such terms and security as the Courts may require, Cross-Plaintiff here and now offering to furnish and/or deposit such security, * * * upon the furnishing of such security upon the terms directed by the Court', and prayer for condemnation. This was accompanied by the City's motion to dissolve the temporary injunction, filed between the same dates as the above first amended original answer and cross-action. On February 18, 1954, the City filed its second amended original answer and cross-action in which it especially reserved its exceptions theretofore filed in its first amended original answer and cross-action; gave metes and bounds description of the land needed for the drain across Mrs. Adams' land; joined issue as to the amount of water to be carried by the easement sought, and whether water, other than from the drain's natural watershed would flow down this drain across Mrs. Adams' land; and filed its cross-action, as in the first amended original answer, with enlarged and more detailed description of its claims; again the City prayed for right of immediate entry and possession of the easement or right 'upon such terms and security as the Courts may require, Cross-Plaintiff here and now offering to furnish and/or deposit such security, and the temporary injunction heretofore granted by this Court be in all things dissolved and held for naught, upon the furnishing of such security upon the terms directed by the Court * * *.' On March 18, 1954 Mrs. Adams filed what she designated as 'Contest and Reply to Defendant's Motion to Dissolve Order Granting Temporary Injunction.'

On March 18, 1954, a hearing was had upon this second amended original answer and cross-action. The court refused to fix the security to be furnished by the City or to allow the City to immediately enter upon Mrs. Adams' land, as the City claimed was authorized by Art. 3269, Revised Civil Statutes, Vernon's Ann.Civ.St. According to the transcript the first and only order ever entered of record upon these pleadings was on March 24, 1954 and after a hearing by the court on March 18, 1954. The City filed the transcript in the Court of Civil Appeals on April 13, 1954. After filing the record, and after Mrs. Adams had made her motion to dismiss the appeal, the City filed its petition for mandamus against Mrs. Adams and Honorable Roy F. Campbell, the trial judge, seeking a writ directing the judge to enter his order fixing the amount of security to be given by the City, and permitting the immediate entry by the City upon Mrs. Adams' property. The Court of Civil Appeals combined both cases and heard them at the same time. It entered its judgment dismissing the City's appeal and refusing the writ of mandamus. 269 S.W.2d 572. From this judgment the City applied for a writ of error as to that part dismissing its appeal, and also filed its original application for mandamus in this Court, seeking the same relief as it had sought in its application for mandamus in the Court of Civil Appeals. This mandamus practice is proper under our procedure of Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, and Dallas Railway & Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081.

We affirm the judgment of the Court of Civil Appeals in dismissing the City's appeal. We grant the application for mandamus for the reasons hereinafter stated.

The action of both courts below is sought to be sustained by Mrs. Adams upon the ground that the refusal of the trial judge to set the amount of security to be given by the City as a condition precedent for its entry upon Mrs. Adams' land is an interlocutory order, made in the course of the trial and can only be complained of upon an appeal after the final judgment. We sustain this contention.

One of the grounds upon which the trial court refused to determine the amount of security to be deposited by the City and to dissolve the temporary injunction against the City and permit it to go upon Mrs. Adams' land and take immediate possession thereof, and which action was affirmed by the Court of Civil Appeals in the majority opinion (269 S.W.2d 575), was that the City 'having refused to waive its right to urge its claim of title to the land in dispute, cannot avail itself in its alternative condemnation actions of the statutory right of requiring the court to determine the amount of security which it should deposit as a prerequisite to taking immediate possession of the land.' (Emphasis added.) These rights were claimed by the City under Art. 3269, Vernon's Annotated Texas Civil Statutes, which reads as follows:

'When the State of Texas, or any county, incorporated city, or other political subdivision, having the right of eminent domain, or any person, corporation or association of persons, having such right, is a party, as plaintiff, defendant or intervenor, to any suit in a District Court, in this State, for property or for damages to property occupied by them or it for the purposes of which they or it have the right to exercise such power of eminent domain, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of the property and assessment of damages therefor, upon petition of the plaintiff, cross-bill of the defendant or plea of intervention by the intervenor asking such remedy or relief; and such petition, cross-bill or plea of intervention asking such relief shall not be an admission of any adverse party's title to such property; and in such event the condemnor may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; and provided that, if injunctive relief be sought, the Court may grant such relief under the Statutes and Rules of Equity, or may, as a prerequisite for denying such relief, require the party seeking condemnation to give such security as the Court may deem proper for the payment of any damages that may be assessed on such party's pleading for condemnation.' (Emphasis added.)

An examination of the legislative history of Art. 3269 will demonstrate that by the statute in its present from the Legislature intended to give to the condemnor, in cases falling within the terms of the statute, the right to urge alternative and inconsistent remedies in the same cases, and remedies in the same cause, and and at one time. The language above italicized by us very plainly says the condemnor does have such right. Art. 3269, as found in the Revised Civil Statutes, 1925, reads:

'When those having the right of eminent domain are sued for property or for damages to property occupied by it for the purpose for which it has the right to exercise such power, the court in which such suit is pending may determine all matters in dispute between the parties, including the condemnation of property, upon petition or cross-bill asking such remedy by defendant, but the plea for condemnation shall be admission of the plaintiff's title to...