City of Mineral Wells v. McDonald, 8037.

Decision Date07 April 1943
Docket NumberNo. 8037.,8037.
Citation170 S.W.2d 466
PartiesCITY OF MINERAL WELLS v. McDONALD, Chief Justice, et al.
CourtTexas Supreme Court

W. O. Gross, of Mineral Wells, for relator.

Grindstaff, Zellers & Hutcheson, of Weatherford, for respondents.

SHARP, Justice.

This is an application by the City of Mineral Wells, a municipal corporation, located in Palo Pinto County, Texas, for a writ of mandamus to compel the Court of Civil Appeals at Fort Worth to certify the following question of venue: "Did the District Court of Parker County err in overruling the plea of privilege of the City of Mineral Wells in this suit which is based upon a trespass claimed to have been committed by officers of the United States Government in Parker County when the undisputed proof showed that no officer or agent of the city participated in the acts of trespass and that the city did no more than to obtain at the instance of the Government a lease upon said land?"

The pertinent facts in the case are these: Ralph K. Alexander, Miss Maida Alexander, a feme sole, and H. H. Chambers, plaintiffs, filed suit in Parker County, Texas, against the City of Mineral Wells, a municipal corporation, located in Palo Pinto County, Texas, for trespass upon property belonging to plaintiffs in Parker County, and for damages to plaintiffs' peach orchard occasioned by such trespass. We quote from the opinion of the Court of Civil Appeals the following statement: "From the record it appears that W. E. Spurgeon is the fee owner of a 25-acre tract of land in Parker County, Texas, and R. E. Spurgeon is the fee owner of a 15-acre tract in the same county. In February of 1938, these two tracts of land were leased by the respective owners to the plaintiffs for a term of ten years, for the purpose of planting and cultivating peach orchards thereon. The leases were duly recorded in the deed records of the county in June of the same year.

"The plaintiffs planted peach trees on the land and were in possession when the leases hereinafter mentioned were executed.

"In December of 1940, each of the Spurgeons executed a lease of his tract of land to the City of Mineral Wells. It is not disputed that the purpose of the City of Mineral Wells in assembling these and other leases was to provide an area for the use of the United States Army as a bivouac and training area and target range, near the campsite of Camp Wolters. The City of Mineral Wells in turn executed a lease to the United States government, covering this land and several thousand acres of other land, for the use mentioned. It can reasonably be inferred from the testimony that the government of the United States took possession of the land under and by virtue of the so-called `master lease' it had received from the City of Mineral Wells.

"Plaintiffs offered evidence to show that the United States authorities had fenced his (their) land, and had taken possession of it, and were using it as a target range, and that plaintiffs as a result had been excluded from the leased land and had been unable to cultivate the orchard or gather any fruit from the trees.

"Plaintiffs sued the City of Mineral Wells for damages, seeking to recover what they alleged to be the profits they had lost and would lose as a result of not being able to cultivate the orchard and gather and sell the fruit. The Spurgeons were made parties to the suit, but no recovery of any kind was sought against them. Plaintiffs did not sue the United States.

"The City of Mineral Wells filed its plea of privilege, seeking to remove the cause to Palo Pinto County. Plaintiffs controverted the plea, seeking to maintain venue in Parker County, where the suit was filed, under Section 14, Article 1995, R.C.S., on the ground that the suit was one to recover damages to land, and under Section 9, on the ground that the defendant had committed a trespass in Parker County."

At the hearing on the plea of privilege the various leases were introduced in evidence, as well as a letter from the United States Army representative, answering certain questions that might arise in the minds of owners of the land on which the Government desired a lease, and stating that because of the emergency and lack of time and sufficient personnel the Government needed the assistance of the City of Mineral Wells in procuring the leases. We quote from the letter the following pertinent statements:

"Therefore, the Government is demanding that this detailed work of obtaining the leases and paying the rentals to the numerous landowners be performed by the City of Mineral Wells, through the Commission, and various committees. A Master Lease will then be made by the Government with the City of Mineral Wells. The Government will make its remittances to the City each quarter and the City will distribute the rentals among the landowners.

"* * * Proper training can only be accomplished with the proper training grounds and aids. I assure you that the unselfish and patriotic assistance given by the City, the various landowners and yourself is sincerely appreciated."

There was no evidence to the effect that the City of Mineral Wells did anything more than take the leases from the various landowners of the land desired by the Government, and make the master lease to the United States Government covering all the acreage. The City of Mineral Wells carried out the demands of the United States Government, obtained the leases as requested and executed to the United States Government a master lease covering some 7,780 acres of land, which included the Spurgeon tract. The master lease contained the following provision: "The Government hereby agrees that the lessor shall have the right on each Saturday and Sunday, with the permission of the Camp Commander, and at various other days during the week, to be designated by the Camp Commander of Camp Wolters, when no firing will be in progress, to go upon their respective premises and gather fruits, crops and pecans, and attend to such other matters as they may choose, including the right to remove any of their improvements now on the premises. They shall be permitted, during the summer of 1941 to harvest small grain crops now growing upon the lands, and the Camp Commander at Camp Wolters shall arrange and designate appropriate periods of time for such harvesting when there shall be no firing upon the area included in this lease."

The trial court overruled the plea of privilege. On appeal the Court of Civil Appeals affirmed the judgment of the trial court. 163 S.W.2d 721.

Our courts have repeatedly held that the dominant purpose of the venue statutes is to give a person who has been sued the right to defend such suit in the county of his domicile, except under well-defined exceptions. Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062, and cases cited. Among the exceptions authorizing the filing of a suit against a person outside the county of his domicile are found Subdivisions 9 and 14 of Article 1995, which read as follows:

"9. Crime or trespass.—A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile."

"14. Lands.—Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or...

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