City of Kennedale v. City of Arlington, 17675

• Decision Date: 09 January 1976
• Docket Number: No. 17675,17675
• Citation: 532 S.W.2d 668
• Parties: CITY OF KENNEDALE, Appellant, v. CITY OF ARLINGTON, Appellee.
• Court: Texas Court of Appeals

Page 668

532 S.W.2d 668

CITY OF KENNEDALE, Appellant, v. CITY OF ARLINGTON, Appellee.

No. 17675.

Court of Civil Appeals of Texas Fort Worth.

Jan. 9, 1976.

Rehearing Denied Feb. 13, 1976.

Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellant.

Bagby, McGahey, Ross & DeVore, Stanley E. Wilkes, Jr., and Tom Todd, City Atty., Arlington, for appellee.

OPINION

BREWSTER, Justice.

This suit was brought by the City of Kennedale against the City of Arlington, seeking a declaratory judgment declaring the rights of those parties to certain lands located within the overlapping extraterritorial jurisdiction of both of those cities as such extraterritorial jurisdiction was created and defined by Art. 970a, V.A.C.S.

As a basis for its claims Kennedale contended that by reason of an apportionment agreement that it had made with the City of Fort Worth involving this same land that it had succeeded to all or some of the City of Fort Worth's extraterritorial jurisdictional rights within the overlapping area, and that Arlington knew of the agreement and was estopped from trying to annex such land.

Kennedale also sought an injunction against Arlington to prevent Arlington from annexing a part of that land.

In the alternative, Kennedale prayed that the land lying within the overlapping extraterritorial jurisdiction of Kennedale and Arlington be apportioned between them, as provided for in Art. 970a, Sec. 3B, V.A.C.S.

About one year and nine months after the suit was filed, the plaintiff, Kennedale, filed an amended petition naming Fort Worth, also, as a defendant in the case, but the trial court, on its own motion, dismissed the case as to Fort Worth, stating as its reasons for the action that Fort Worth was neither a necessary nor a proper party to the suit.

A non-jury trial was had and the court at its conclusion rendered judgment apportioning the land in the area of overlapping extraterritorial jurisdiction between plaintiff and defendant. This appeal is from that decree.

We affirm the trial court's decree.

In presenting its case on appeal, Kennedale argues its first four points of error together. It groups them under the following heading: 'Errors denying appellant any rights or equities by its contract with Fort Worth.'

Its first point is that the trial court erred in holding that the agreement entered into between Kennedale and Fort Worth (Plff. Ex. 3) apportioning extraterritorial jurisdiction between them had no legal effect on extraterritorial jurisdictional rights as between Kennedale and Arlington.

Its point No. 2 is that the trial court erred in holding that Kennedale did not as a result of the contract between it and Fort Worth acquire any of Fort Worth's rights in the overlapping extraterritorial jurisdictional area of Kennedale and Arlington.

Point No. 3 is that the court erred in holding that apportionment of the extraterritorial jurisdictional area between Arlington and Kennedale had to be apportioned 90% To Arlington and 10% To Kennedale based on their respective populations.

Point No. 4 is that the trial court erred in refusing to hold that all of the overlapping extraterritorial jurisdictional area of Kennedale and Arlington was also overlapping as to Fort Worth under Art. 970a, V.A.C.S., and that Fort Worth would have been entitled to 79% Of the area on the basis of population under the Act, and that Kennedale by its contract with Fort Worth had acquired all or part of Fort Worth's rights in the disputed area.

We overrule Kennedale's first four points of error.

The Municipal Annexation Act involved here (Art. 970a, V.A.C.S.) was enacted on May 14, 1963, and became effective on August 23, 1963 . Deacon v. City of Euless, 405 S.W.2d 59 (Tex.Sup., 1966).

The extraterritorial jurisdiction of Fort Worth under Art. 970a extended five miles from its corporate limits because it had a population at the time in question in excess of 100,000. Kennedale had a population of less than 5,000, so it had an extraterritorial jurisdiction of one-half mile. In this case Arlington contended that its population on August 23, 1963, the date the Act went into effect, was in excess of 50,000 and less than 100,000. If Arlington was in that population bracket, its extraterritorial jurisdiction would have extended 3 1/2 miles from its corporate limits. Kennedale contended that Arlington's population on the date in question was between 25,000 and 50,000. If that had been the case, Arlington's extraterritorial jurisdiction would have been only two miles. The trial court found that Arlington's population on August 23, 1963, was in excess of $50,000.

The question of whether Arlington's population was more or less than 50,000 was important because if Arlington's extraterritorial jurisdiction extended only two miles from its corporate boundaries, then a part of the land in controversy that was apportioned by the judgment to Arlington would not be located within its extraterritorial jurisdiction and Arlington would have had no claim to that part of it. If Arlington's extraterritorial jurisdiction extended 3 1/2 miles from its corporate boundaries, as was found by the trial court, then all of the land involved would lie within the overlapping extraterritorial jurisdiction of all three of the cities .

Article 970a, Sec. 3B contained the following: 'In the event that on the effective date of this Act the area under the extraterritorial jurisdiction of a city overlaps an area under the extraterritorial jurisdiction of one or more other cities, such overlapped area may be apportioned by mutual agreement of the governing bodies of the cities concerned. Such agreement shall be in writing and shall be approved by an ordinance or resolution adopted by such governing bodies.'

Pursuant to that provision of the statute Kennedale and Fort Worth did in December, 1969, by joint resolutions of their City Councils, enter into a written agreement whereby they apportioned their overlapping extraterritorial jurisdictional rights in the land involved in this suit and in other lands as between themselves. The agreement established a joint dividing line that ran along what was then in part the western corporate limits of Kennedale. Fort Worth did in the agreement relinquish all extraterritorial jurisdictional rights that it had or might thereafter acquire in all territory lying to the east and north of the line and in that agreement Kennedale relinquished all extraterritorial jurisdictional rights that it had or might thereafter acquire in all territory lying to the south and west of the line referred to.

The land that is involved in this suit is located in the area to which Fort Worth, in that agreement with Kennedale, did relinquish all of its extraterritorial jurisdictional rights.

The agreement contained the following provisions: 'Fort Worth and Kennedale mutually covenant and agree to protect, preserve and defend the herein apportioned areas against all parties whomsoever.'

Arlington and Kennedale did not enter into a written agreement with each other as provided for in Art. 970a, Sec. 3B, apportioning the land involved here in which they had overlapping extraterritorial jurisdiction.

In October, 1972, Arlington started proceedings to annex all of the area lying between Kennedale's then existing northeasterly city limits and the then constructed new highways I--20 and 287. Kennedale then filed this suit to enjoin Arlington's threatened annexation and to determine the rights of the parties to the land in the area that Arlington was seeking to annex.

On February 6, 1973, which date was after this suit was filed, Arlington and Fort Worth entered into an apportionment agreement (Plff. Ex. 13) pursuant to Art. 970a, Sec. 3B. By their agreement they also established a joint extraterritorial jurisdictional dividing line between them. Their agreement adopted as a part of that line the same line that Forth Worth and Kennedale had agreed upon that ran along the west side of Kennedale. The agreement provided that Arlington relinquish all extraterritorial jurisdictional rights that it had in all areas lying to the right of such line. It also provided that Forth Worth relinquish all extraterritorial jurisdictional rights it had in all the area lying to the left of such line. The land to which Fort Worth thus relinquished its extraterritorial jurisdictional right in this agreement included the same area to which Forth Worth had relinquished its extraterritorial jurisdictional rights in its agreement with Kennedale.

The trial court in deciding this case decided it as if it was simply a suit between Kennedale and Arlington for an apportionment of their overlapping extraterritorial jurisdictional rights, and as if it was in no way affected by either city's apportionment contract with the City of Forth Worth.

Article 970a, Sec. 3B provides that in a suit between cities having overlapping extraterritorial jurisdictional rights: 'Such overlapped area shall be apportioned among such cities in the same ratio (to one decimal) as the respective populations of the cities concerned bear to one another, but in such apportionment no city shall receive less than one-tenth (1/10) of such overlapping area.'

The trial court found that on August 23, 1963, Kennedale had a population of 1,600, and that Arlington then had a population in excess of 50,000. The undisputed evidence showed that Fort Worth's then population was 356,268.

Kennedale's reasoning is that had this suit been between Fort Worth, Arlington and Kennedale for the apportionment of their overlapping extraterritorial jurisdictional rights in the land involved that because of the populations of the three cities Forth Worth would have been entitled to have about 79% Of the area awarded to it, Arlington would have been entitled to about 11%, and Kennedale would have been entitled to 10% Of it.

Kennedale further contends that by virtue of its apportionment agreement with Fort...