City of Missouri City v. Senior

• Decision Date: 17 May 1979
• Docket Number: No. 17291,17291
• Citation: 583 S.W.2d 444
• Parties: CITY OF MISSOURI CITY, Texas, Appellant, v. Mrs. Oliver SENIOR et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 444

583 S.W.2d 444

CITY OF MISSOURI CITY, Texas, Appellant, v. Mrs. Oliver SENIOR et al., Appellees.

No. 17291.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 17, 1979.

Rehearing Denied June 14, 1979.

Olson & Olson, William A. Olson, Houston, for appellant.

Butler, Binion, Rice, Cook & Knapp, Claude C. Roberts, Houston, Roane, Schwartz & Kalinowski, Don T. Schwartz, Rosenberg, for appellees.

WARREN, Justice.

This is an appeal by the City of Missouri City, Texas, from a judgment of the trial court holding two of its annexation ordinances void.

On October 19, 1965, appellant acting through its city council passed ordinance 102, thereby annexing what purported to be 89.281 acres of land owned by Dr. Hampton Robinson. He is not a party to the suit. On May 28, 1968, appellant acting through its city council passed ordinance 116 thereby annexing land owned by the appellees, Mrs. Oliver Senior, W. R. Senior, Anderson Brothers Farm, Incorporated and Ben Anderson.

Trial was to the court. The issue most vigorously contested was the sufficiency of the description of the land encompassed and purportedly annexed by ordinance 102. It is undisputed that the land purportedly annexed by ordinance 102 was contiguous to the then existing city limits. The land annexed by ordinance 116 was not adjacent to the city limits unless ordinance 102 effectively annexed the tract of Dr. Robinson.

In the trial court appellees contended (1) that ordinance 102 was void ab initio because the legal description contained in the ordinance was deficient and (2) as a consequence, ordinance 116 was void because it purported to annex territory which was not adjacent or contiguous to the city limits.

The court found inter alia that:

(1) The description contained in ordinance 102 is impossible to close the boundary or area to be annexed and therefore is insufficient to describe any land, or territory to be annexed to the City of Missouri City, Texas.

(2) That the appellee had legal status and standing to maintain this suit both as to ordinance 102 and 116.

(3) That since ordinance 102 is void ab initio, ordinance 116 is void ab initio because appellant, without authority of law or color of law purported to annex lands and territory described by ordinance 116 which were not contiguous or adjacent to the city limits of the City of Missouri City, Texas.

(4) That the action of the city council in passing ordinance 116 was void ab initio and without authority of or color of law.

(5) That neither ordinance 102 nor 116 had been validated by the legislature.

Appellant claims the trial court erred in failing to dismiss plaintiffs' challenge against the two ordinances because the challenges constitute a collateral attack upon an ordinance, valid on its face, which was adopted pursuant to and under color of law. In Texas, private parties may collaterally attack an annexation ordinance if (1) they are directly affected by the ordinance and (2) the ordinance is void ab initio. Deacon v. City of Euless, 405 S.W.2d 59 (Tex.1966); City of Houston v. Harris County Eastex Oaks Water and Sewer District, 438 S.W.2d 941 (Tex.Civ.App. Houston (1st Dist.) 1969, ref'd n. r. e.).

It was stipulated that Missouri City has assessed ad valorem taxes on the lands encompassed by ordinance 116. The imposition of this tax satisfies the first threshold requirement. Deacon, supra.

In order to satisfy the second threshold requirement, the allegations must, if proved, demonstrate that the ordinance was void ab initio and not just voidable for irregularities. A legal description which does not close is void. State ex rel Rose v. City of LaPorte, 386 S.W.2d 782 (Tex.1965). An ordinance which purports to annex non-adjacent territory is void ab initio. City of Houston v. Harris County Eastex Oaks Water and Sewer District, supra. For these reasons, the appellees had standing to collaterally attack these ordinances. Appellant's points of error 5 and 6 are overruled.

Appellant's points of error one, two, three, and four assert that the trial court erred in finding that the description of the territory annexed by ordinance 116 was not adjacent to the corporate limits of the city. The crux of the trial court's finding was the insufficient description of the boundaries of ordinance 102. It is conceded that if the ordinance 102 defines boundaries which close, then the land annexed by ordinance 116 would be adjacent to the city. A city annexation ordinance containing an inadequate description which does not close after standard rules of construction and surveying practices are employed, is void. Rose, supra. If the description cannot be literally applied due to an inaccuracy, a reasonable construction of the ordinance as a whole must be made to carry into effect the intent of the municipality. State ex rel. American Manufacturing Co. v. City of Fort Worth, 339 S.W.2d 707, 709 (Tex.Civ.App. Fort Worth 1960, ref'd n. r. e.).

The description contained in ordinance 102 was copied verbatim from the petition for annexation submitted by the landowner, Dr. Hampton C. Robinson. Both descriptions omitted one call and further misstated or omitted four intermediate calls. Due to these inaccuracies the standard surveying technique of reversing the calls could not be employed. It is also undisputed that by referring merely to the petition for annexation and the annexation ordinance the boundaries did not close. In the trial court, a surveyor called by appellant testified that the description could be closed by conducting a survey on the ground and by reference to the deed records. A surveyor called by appellees testified that it was impossible to close the boundaries and thereby enclose a tract of land.

The first two calls in the description conflicted. These calls read as follows:

First Call:

BEGINNING in the center line of Oyster Creek, 200.7 feet North of a 1 inch iron pipe set in the Northeast right-of-way line of the Sugar Land Railroad for corner, being the city limit line of Missouri City, Texas, and the Northwest corner of said 89.281 acre tract.

Second Call:

THENCE South 52 degrees 27 minutes West 200.7 feet to a 1 inch iron pipe set in Northeast right-of-way line of the Sugar Land Railroad for corner, being on the city limit line of Missouri City, Texas.

Both surveyors testified that one of the calls was inaccurate because they do not run on the same course. Appellees' surveyor testified that this conflict was confusing and created an ambiguity as to the true point of beginning. Appellant's surveyor reconciled this conflict by locating the iron stake called for in the first call (point B), from which point he reversed the second call, turned the angle, and measured 200.7 feet to establish the northeast corner (point A). Having established points A and B, both surveyors could then establish the next point (point X) by following the third call which supposedly established the southeast corner. This call and the fourth call read as follows:

Third Call:

THENCE South 37 degrees 33 minutes East 2,476.7 feet along the North right-of-way line of said railroad to Southeast corner of said 89.281 acres of land.

Fourth Call:

THENCE up-stream along centerline of Oyster Creek following its meanders . . . to Northwest corner of said 89.281 acres of land, the place of beginning, being an 89.21 acre tract out of the David Bright League, Abstract 13, Fort Bend County, Texas.

At point X, the appellant's surveyor found a two inch iron pipe and an old corner post. According to the next call, the final boundary was to be established by going up-stream along the centerline of Oyster Creek. Point X, however, was a considerable distance west of the creek. It became apparent that the southwest corner had been established (not the southeast) and that one or more calls had been omitted in toto.

Being familiar with the land, Appellant's surveyor knew that the creek was located to the east of point X. When he looked in this direction he noted a straight tree line running from the proximity of the old corner post and iron stake to the creek. Appellant's surveyor believed that the missing point (point C) was at the intersection of the tree line and the centerline of the creek. Neither the iron stake, the corner post, nor the tree line were mentioned in the ordinance. Appellees' surveyor testified that he did not notice the corner post, the iron stake or the tree line near point X. No photographs or other demonstrative evidence was introduced to substantiate the testimony of the appellant's witness.

Appellant's surveyor employed two methods to verify the accuracy of this missing point. First, he reversed some of the intermediate calls in the last call which he found to match the meanders of the centerline. Second, he searched the deed and map records of the county and discovered that Dr. Robinson owned only one 89.21 acre tract in the David Bright League. He then examined this deed and found the missing call which, when used, came within one foot of his point C.

Omitted calls may not be added to an annexation ordinance by showing that the enacting body intended the call to be included. Rose, supra. In the Rose case, the members of the city council and the mayor attempted to testify as to their intent. In the instant case, the surveyor went to the deed records, which were not referred to in the ordinance or petition, to determine the city council's intent. Neither is an acceptable procedure. The description in the ordinance must be relied upon to the exclusion of extraneous records, unless referred to in the ordinance, or unless a latent ambiguity arises from extraneous facts. City of Houston v. Harris County Eastex Oaks Water and Sewer District, supra.

In the instant case there are numerous errors patent in the ordinance. There is too much extraneous information which needs to be supplied in order to close the boundaries. After employing the appropriate rules of construction and considering...