City of Houston v. Adams

• Decision Date: 20 May 1954
• Docket Number: No. 12739,12739
• Citation: 269 S.W.2d 572
• Parties: CITY OF HOUSTON v. ADAMS et al.
• Court: Texas Court of Appeals

Page 572

269 S.W.2d 572

CITY OF HOUSTON v. ADAMS et al.

No. 12739.

Court of Civil Appeals of Texas, Galveston.

May 20, 1954.

Rehearing Denied June 24, 1954.

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

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

Judge Roy F. Campbell, pro se.

HAMBLEN, Chief Justice.

The cause was filed in this Court by the City of Houston as an appeal from an order of the District Court of Harris County entered on March 24, 1954, wherein that court refused to determine the amount of security which the City should be required to give as a prerequisite to taking immediate possession of property under the provisions of Art. 3269, Revised Civil Statutes 1925, as amended, Vernon's Ann.Civ.St. art. 3269. Appellee, Mary E. Adams, filed first a motion to dismiss the appeal on the ground that it was an attempt to appeal from an interlocutory order that did not fall within the class of interlocutory orders from which appeals are allowed by law, and in addition filed a brief answering the merits of the appeal to be considered in the event of a ruling adverse to her on the motion to dismiss. Appellant, City of Houston, filed, by leave of court, for consideration in the event the order of March 24, 1954 is not appealable, a petition for mandamus, praying that the respondent, Roy F. Campbell, as Judge of the District Court of Harris County, 80th Judicial District, be ordered and commanded to determine the security which may be proper for the payment of any damages that may be assessed on the City's pleading for condemnation and that upon the deposit thereof it be granted the right to take possession of the property in dispute. This Court took submission of both the appeal and the petition for mandamus and heard argument upon all contentions made by all litigants. The following facts are material to our discussion of the several unique questions thus presented:

The suit was instituted by appellee, Mary E. Adams, as a petition for temporary injunction restraining appellant, City of Houston, and its contractor, Gulf Bitulithic Company, from emptying water or other matter from a storm sewer being constructed on Old Post Oak Road in the City of Houston into a natural drain traversing appellee's four acre tract of land. The issuance of the temporary injunction prayed for was resisted by the appellant, City of Houston, solely upon the ground that it held the superior title to such portion of appellee's land as was included in the natural drain. In this connection it is noted that appellant's claim of title is rested upon the proposition that appellee's land was subject to a natural servitude in favor of the upper riparian owners insofar as surface waters were concerned, which created an easement inuring to the appellant as a public corporation. After a hearing the injunction prayed for was granted. No appeal was taken from that order.

Thereafter appellant filed an amended answer and cross-action and a motion to dissolve the temporary injunction. The cross-action was for title and possession of its claimed easement across appellee's land and alternatively for condemnation. Such alternative plea for condemnation was expressly conditioned upon a final judgment that appellant does not have the easement to which it claims title. The record reflects no order either granting or denying the motion to dissolve the injunction.

Thereafter appellant filed a pleading designated as its second amended answer and cross-action, wherein it alleged three cross-actions, as follows: (1) a plea in trespass to try title to the natural drain which was described by metes and bounds, (2) condemnation of such additional flowage rights and easements across the described drain as the court might determine it did not own, and (3) condemnation of an easement for drainage purposes across the described natural drain in the event the court order determined that appellant did not own the easement described in its trespass to try title court. Both cross-actions for condemnation contained a prayer that the court determine and fix the amount of security proper for the payment of any damages that might be assessed on appellant's plea for condemnation and that upon the deposit thereof appellant be permitted to take possession of the described easement.

After hearing, the trial court, on March 24th, entered an order denying appellant's request that the amount of security be determined and fixed and that it be allowed to take immediate possession of the easement. It is from this order that the appeal has been perfected.

We think that appellee's motion to dismiss the appeal is well taken and must be granted. The appealed-from order is clearly interlocutory since all issues raised by the pleadings of both parties are still to be determined by the trial court upon final hearing of the suit which still pends in that court. The order contains a recitation that the relief sought by appellant in its alternative cross-actions for condemnation would, if granted, have the effect of dissolving and setting aside the temporary injunction previously granted by the court. It appears to be appellant's contention that such recitation constitutes the order as one refusing to dissolve a temporary injunction and, therefore, an appealable order. We disagree with this contention. The order contains several findings by the trial court, of which the recitation referred to is but one. All such findings were made by the court in support of its order. The order remains one denying appellant's prayer that the court determine and fix the security which appellant should give before taking possession of the land in dispute. As such it does not fall within any of the specific classes of interlocutory orders from which an appeal is allowed by law and is, therefore, under the general rule not an appealable order.

The petition for writ of mandamus presents a more difficult question. In it, as relator, the City of Houston contends that the provisions of Art. 3269, Revised Civil Statutes, 1925, as Amended, impose a mandatory ministerial duty on the trial court to determine and fix the amount of security necessary to protect the landowner and upon deposit of such security must permit the condemning authority to occupy the land sought to be condemned. The respondent, Roy F. Campbell, Judge of the District Court of Harris County, 80th Judicial District, answers that the relator, 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. This contention is supported in the record by a finding to that effect in the order of March 24, 1954.

The applicable provisions of Art. 3269, Revised Civil Statutes 1925, as Amended, are 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 of (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. Acts 1899, p. 18; Acts 1931, 42nd Leg., p. 413, ch. 245, § 1; Acts 1945, 49th Leg., p. 404, ch. 259, § 1.'

There is no doubt as to the constitutionality of such Statute, nor is there any doubt but that if the provisions of the Statute and the applicable provisions of the Texas Constitution are complied with, there is imposed upon the District Court the duty of determining the amount of security to be deposited by the condening authority and upon the deposit thereof of permitting immediate possession of the land by such condemning authority. We consider the decision of the Supreme Court of Texas in the case of Brazos River Conservation and Reclamation District v. Costello, 135 Tex. 307, 143...