City of Houston v. Miller

• Decision Date: 18 December 1968
• Docket Number: No. 199,199
• Citation: 436 S.W.2d 368
• Parties: CITY OF HOUSTON, Appellant, v. Honorable William A. MILLER, Jr., et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 368

436 S.W.2d 368

CITY OF HOUSTON, Appellant, v. Honorable William A. MILLER, Jr., et al., Appellees.

No. 199.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 18, 1968.

Rehearing Denied Jan. 15, 1969.

William A. Olson, Clifton E. Speir, Sr., Fred Robert Spence, Houston, for appellant.

Charles Kipple, Saccomanno, Clegg & Martin, Houston, for appellees .

BARRON, Justice.

This is an appeal from an order of the District Court of Harris County, Texas, denying a petition for mandamus and the relief sought therein filed by the City of Houston against Honorable William A. Miller, Jr., individually and as Judge of Civil County Court at Law No. 2 of Harris County. Petitioner, the City of Houston, has appealed the order of denial to this court. Appeal is a proper legal remedy in this type of case, and no contention is made by any party that such action is improper. See Lowe and Archer, 'Remedies,' Sec. 490, p. 479; 37 Tex.Jur.2d, Sec. 116, p. 774, and cases cited.

A somewhat detailed statement is necessary. About November 16, 1961, in Cause No. 111,022, the City of Houston filed a petition for condemnation with the Judge of the County Court at Law No. 2 seeking to condemn an alleged reversionary interest which was being asserted by Glenn H. McCarthy and wife in a tract containing 24,735 square feet out of a tract of 1.651 acres of land in the P. W. Rose Survey in Harris County. On November 16, 1961 the court appointed three special commissioners who, after qualifying and after notice to the McCarthys, held a hearing on December 26, 1961 for the purpose of assessing damages for the alleged taking. The Special Commissioners on January 2, 1962 entered a written award, and the City deposited the amount of the award on January 4, 1962, thereby entitling the City to possession of the property as against the McCarthys. Within the time prescribed by law, McCarthy and wife filed their objections to the award of the Special Commissioners on January 15, 1962, whereby the matter became a civil suit pending in the county court. In the meantime, on December 21, 1961, Glenn H. McCarthy and wife, Faustine McCarthy, filed Cause No. 584,926 in the 152nd District Court of Harris County, seeking an injunction against the City, the Judge of the County Court at Law and the three special commissioners . Injunction was denied by the District Court on December 26, 1961, and McCarthy and wife later moved for a non suit which was granted on October 4, 1967.

On January 10, 1962, in Cause No. 111,186, the City filed its petition for condemnation against Harris County Flood Control District seeking to condemn a street easement as against the District's then present interest in the identical property. Three commissioners were properly appointed, a hearing was held, and an award was entered in this condemnation suit. Neither party appealed and judgment was entered on February 19, 1962, vesting in the City of Houston an easement for street, road and highway purposes in, on, upon, over, under, along and across the fee title to the said land owned by the District. The City deposited the amount of the award, entered in and upon said land and proceeded to construct a bridge thereon, same being an integral link in the extension of North Braeswood Boulevard.

On December 28, 1961, Glenn H. McCarthy and wife filed in the 61st District Court of Harris County, as Cause No. 585,183, another suit styled Glenn H. McCarthy, et ux vs. The City of Houston and Harris County Flood Control District, et al, seeking another temporary injunction and other relief. In this suit McCarthy and wife alleged a deed unto them prior to 1956 to the property involved, a part of a 10.143 acre tract of land; a settlement agreement with the flood control district of 1.651 acres out of the 10.143 acre tract pursuant to the District's right of condemnation and for a stated consideration; a deed executed by the McCarthys to the flood control district of March 14, 1956, wherein conveyance of the surface estate was made subject to the condition that the District, its assigns or successors, 'shall not for a period of 999 years burden the surface fee conveyed herein with any aboveground fences, buildings or structures * * *.'; an instrument entitled 'Easement' from the District to the City allegedly executed on December 7, 1961 and relating to said 1.651 acres; the City's erection of aboveground structures on the 1.651 acres with the knowledge, consent and cooperation of the District; contention by plaintiffs that title conveyed in the March, 1956 deed to the 1.651 acres determined and reverted to McCarthy and wife because of breach of the conditions subsequent in such deed by virtue of construction by the City of the aboveground improvements; and, as the City claims to be significant, plaintiffs' petition concluded with formal and general pleadings in trespass to try title. In their prayer the McCarthys alleged that they have judgment for fee simple title to the land, that the City be required to remove the aboveground improvements, that the City and the District be enjoined from Diverting the dedication of the grant of 1.651 acres to the City; for reformation of the deed from plaintiffs to the District, that the City and the District be required specifically to comply with the covenants and conditions in the deed aforesaid, and for general relief.

In its trial answer the City set up pleas to the jurisdiction, in bar, and in abatement. In such pleas the City described the condemnation suit pending against the McCarthys' reversionary rights in 24,735 square feet of the 1.651 acre tract and pointed out that the condemnation proceeding required the City to admit title to the property interests sought therein in the McCarthys. In its plea of not guilty, general denial and special answer similar admissions of the reversionary right and title of the McCarthys were made, and allegations were made 'That Plaintiffs (McCarthys) have not alleged anything in their position that would take away or subtract from the rights of Defendant, City of Houston, acquired in said eminent domain proceedings, from Harris County Floor Control District, nor to be acquired by it by the pending condemnation suit against Plaintiffs herein.' (Parenthesis added).

The temporary injunction of plaintiffs in the above suit was denied by the trial court, and the cause was dismissed as to the Judge of the County Civil Court at Law No. 2 and the three special commissioners, leaving the City of Houston and Harris County Flood Control District as defendants. After a jury trial, on August 30, 1963, the trial court instructed a verdict and decreed that plaintiffs take nothing. McCarthy and wife appealed the judgment of the trial court, and the judgment was affirmed by the Court of Civil Appeals for the Thirteenth Supreme Judicial District of Texas at Corpus Christi. The case is reported at 389 S.W.2d 159. Application for writ of error was refused, no reversible error, by the Supreme Court of Texas on July 7, 1965. Reference is made to the decision of the Corpus Christi Court for additional factual background of this case and for its decision therein.

After the judgment became final in the foregoing suit in District Court, the City filed an amended motion for judgment with Judge Miller in Cause No. 111,022, pointing out that the issue of title to the disputed land insofar as the City and McCarthys are concerned had been resolved in favor of the City by final judgment in Cause No . 585,183, and it asked that the pending condemnation suit be dismissed. J...