City of Piney Point Village v. Harris County

• Decision Date: 20 January 1972
• Docket Number: No. 15869,15869
• Citation: 479 S.W.2d 358
• Parties: The CITY OF PINEY POINT VILLAGE, Texas, et al., Appellants, v. HARRIS COUNTY, Texas, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 358

479 S.W.2d 358

The CITY OF PINEY POINT VILLAGE, Texas, et al., Appellants, v. HARRIS COUNTY, Texas, et al., Appellees.

No. 15869.

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

Jan. 20, 1972.

Rehearing Denied April 27, 1972.

Paul Strong, Houston, for appellant City of Piney Point.

Fred M. Lange, Hugh E. Hackney, Houston (Fulbright, Crooker & Jaworski, Houston, of counsel), for appellants Thomas J. Bate and wife.

John Held, Lee C. Clyburn, Houston (Baker & Botts, Houston, of counsel), for appellants Percy Selden and wife.

Joe Resweber, County Atty., Edward J. Landry, John B. Reese, Asst. County Attys., Louis Paine, Jr., Thomas W. Houghton, Houston (Butler, Binion, Rice, Cook & Knapp, Houston, of counsel), for appellees.

Jo E. Shaw, Jr., City Atty. for City of Bunker Hill Village, Harman Parrott, for City of Hedwig Village, Ruth B. Bivin, individually and for Stillforest Property Owners, Jamail & Gano, Joseph D. Jamail, John Gano, Wm. J. Stradley, Houston, amici curiae.

BELL, Chief Justice.

Believing we were in error in our original disposition of this appeal, appellees' motion for rehearing is granted and the judgment of the trial court is affirmed. Our original opinion is withdrawn and the following is substituted as the opinion of the court.

The City of Piney Point Village, herein called Piney Point, Percy Selden and wife, and Thomas J. Bate and wife, brought suit against Harris County and the members of the Commissioners Court, in their official capacities, seeking to prevent the building by Harris County of an extension of San Felipe Road within the corporate limits of Piney Point. The full extension proposed would run from South Voss Road in the City of Houston west to Memorial Drive in Piney Point. The individual plaintiffs are property owners in Piney Point whose property the County seeks to condemn. Chester Reed, Trustee, and First Continental Development Corporation, land owners on that part of the extension lying in Houston, were allowed to intervene. They take the same position as does Harris County. A declaratory judgment was sought to declare the previous attempt of Harris County to obtain exclusive control over the extension within Piney Point, through agreement, was void. Also injunctive relief was sought by all plaintiffs. After trial to a court without a jury the court rendered judgment for the appellees .

On August 17, 1955, the Board of Aldermen of Piney Point passed the following ordinance, which is No. 16:

AN ORDINANCE AGREEMENT BETWEEN PINEY POINT VILLAGE AND HARRIS COUNTY

ORDINANCE NO. 16

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF PINEY POINT VILLAGE THAT:

WHEREAS, it is the desire of Harris County to procure the right and authority to extend San Felipe Road to a point within the town limits of Piney Point Village from its intersection of Buffalo Bayou to the intersection of Memorial Drive, and

WHEREAS, the town of Piney Point Village is willing to grant such right and authority to Harris County provided the lines of said extension are not in accordance with the plat attached to this ordinance and made a part thereof, this being necessary in order that the town of Piney Point Village may know the approximate location of the right of way lines in order to enforce its zoning ordinance relative to the abutting property owners and further provided that Harris County agrees to maintain in good condition without cost to the town of Piney Point Village this extension of San Felipe Road between Buffalo Bayou and the intersection with Memorial Drive and also agree to allow the placement of utility lines, poles, etc. within the right of way of said extension. In consideration of Harris County agreeing to the foregoing requirements as signified by their acceptance in the place provided, the town of Piney Point Village, its successors and assigns hereby grants and gives to Harris County Texas, a body corporate and politic, its successors or assigns, for a period of ten (10) years from the date hereof, with option to extend same for an additional ten (10) years the absolute right and authority to widen, to set building lines, to construct, to improve, maintain, control and take into the County Road System, all of that part of San Felipe Road, extension lying within the town limits of Piney Point Village, from its intersection with Buffalo Bayou to its intersection with Memorial Drive as shown on the tentative plat attached hereto.

Passed this 11 day of August, 1955.

(signatures)

Accepted and approved this 29th day of September, 1955.

(signatures)

At the bottom of the ordinance where it was passed was a place for the County to accept and approve. It was 'Accepted and approved' on September 29, 1955.

At the time of its passage Piney Point was a village incorporated pursuant to Articles 1133 et seq., Vernon's Ann.Civ.St. It remained a village until June, 1957, when it adopted the provisions of Articles 961 et seq. and thus became a general law city. In 1961 by Ordinance 168 Piney Point changed its name and ratified and confirmed all things done by it under its old name.

At the time of passage of the ordinance Memorial Drive was a part of the County Road System and was maintained by the County. It was removed from the system April 9, 1969, and has not since been maintained by the County. Voss Road from Westheimer Road to Buffalo Bayou, just north of the intersection of Voss and San Felipe, was in the County Road System until April 9, 1969, when it was removed. However, it was restored November 6, 1969. For some years prior to the incorporation of Piney Point the Planning Commission of the City of Houston, in its planning of a metropolitan road system, had projected this extension of San Felipe.

On November 3, 1955, Harris County set the building lines and defined the right of way. In 1959 the legislature passed what is known as Article 6674n--2, V.A.T.S. The pertinent part reads as follows:

'The right of eminent domain within the boundaries of a municipality with prior consent of the governing body of such municipality is hereby conferred upon counties of the State of Texas for the purpose of condemning and acquiring land, right of way or easement in land, private or public, except property used for cemetery purposes, where said land, right of way or easement is, in the judgment of the Commissioners Court of such county, necessary or convenient to any road which forms or will form a connecting link in the county road system or a connecting link in a State Highway.'

In 1913 the legislature passed a special road law for Harris County. Local and Special Laws of Texas, Acts of 33rd Legislature, Chapter 17, p. 64 et seq. We will notice its material terms later in this opinion.

On May 6, 1963, Harris County paid Kinkaid School $11,619.40 for land in Piney Point which was to be a part of the right of way. On September 23, 1965, Harris County exercised its option to extend its rights conferred under Ordinance 16 for ten years. This option was exercised after Piney Point Council, on September 13, 1965, had passed a motion instructing its City Attorney to write the County advising it of the necessity of taking action if it wished to extend its rights, as the option expired September 29, 1965. The letter was written. On August 4, 1967, the County bought additional land in Piney Point for right of way at a cost of $29,664.05. On June 23, 1969, Piney Point Council passed a motion directing the City Attorney to write a letter, for the Mayor's signature, notifying the County that the agreement relating to the extension into Piney Point was void. The letter was written and was received by the County July 10, 1969. As of this latter date the County had not purchased any right of way for the part of the extension lying in the City of Houston. However, a subdivider prior to such date had built 998 feet of the extension in Piney Point so that less than one-half of the extension in Piney Point remained to be completed. The 998 feet of road was constructed in accordance with County specifications. Also, prior to July 10, 1969, the County had spent large sums extending San Felipe from the east westward to Voss and had made financial arrangements for segments of the right of way westward from Voss to the corporate limits of Piney Point. The County, however, up to that date had not actually purchased any right of way west of Voss in the City of Houston nor had it let a contract for or commenced construction of the Extension west of Voss. After July 10, 1969, the County purchased the right of way for the extension in Houston and contracted for and completed this part of the extension in Houston. The cost was about $1,216,500.00.

In October, 1968, the County directed its engineer to proceed to secure the necessary right of way. In May, 1969, the County authorized the acquisition of right of way across the Bate and Selden property and authorized the County Attorney to institute condemnation proceedings if necessary. On March 4, 1971, the County again directed that condemnation proceedings be instituted against the Seldens and the Bates. On July 1, 1971, the Commissioners Court by an order found 'that the land, right of way or easements acquired or to be acquired for the proposed extension of San Felipe Road from Voss Road to Memorial are, in the judgment of the Commissioners Court, necessary or convenient to a road or roads which form or will form a connecting link in the County Road System or a connecting link in a State Highway.'

Up until August 9, 1969, Memorial Drive and Voss Road were a part of the County Road System, when they were dropped by the County. Voss Road was restored November 6, 1969, to a point from Westheimer Road to a point just north of San Felipe. Memorial Drive has never been restored. Westheimer, where Voss intersects, is a State highway. No part of Memorial is a County road or a State highway. Memorial connects with State Highway 6 some eight miles west of the...