City of Waco v. City of McGregor, 5300

• Decision Date: 09 May 1974
• Docket Number: No. 5300,5300
• Citation: 510 S.W.2d 637
• Parties: The CITY OF WACO, Appellant, v. The CITY OF McGREGOR, Appellee.
• Court: Texas Court of Appeals

Page 637

510 S.W.2d 637

The CITY OF WACO, Appellant, v. The CITY OF McGREGOR, Appellee.

No. 5300.

Court of Civil Appeals of Texas Waco.

May 9, 1974.

Rehearings Denied May 23, 1974.

Albert R. Kuehl, Waco, for appellant.

Haley, Fulbright, Winniford & Bice, Waco, Amsler & Amsler, McGregor, for appellee.

HALL, Justice.

By ordinance dated December 12, 1966, the City of McGregor annexed a tract of approximately 900 acres which it has owned and maintained as a municipal airport since 1947. The City of Waco brought this suit to have the ordinance declared void. After a trial with a jury, a take-nothing judgment was rendered against the City of Waco. We affirm.

Waco's challenge to the ordinance is based upon the asserted failure of McGregor to comply with certain statutory requirements, especially several involving the extraterritorial jurisdictions of the cities, ¹ when the ordinance was enacted.

Jury findings were made which would support conclusions of waiver, estoppel and laches against the City of Waco, upon the general basis that Waco was dilatory in questioning the ordinance. If the ordinance was void when enacted, it could not be made valid by Waco's subsequent action or inaction; and points of error two through thirteen to this effect are sustained.

If the ordinance was invalid for any of the reasons assigned by Waco, it was made effective when the legislature subsequently enacted Article 974d--12, Vernon's Ann.Civ.St., a general validation statute. The pertinent portion of this article provides:

'Sec. 2. The boundary lines of all (cities), including both the boundary lines covered by the original incorporation proceedings and any subsequent extensions thereof, are hereby in all things validated.'

In City of West Lake Hills v. State ex rel. City of Austin, (Tex.Sup., 1971) 466 S.W.2d 722, the Court was concerned in part with the application of a general validation statute to an ordinance extending the limits of the City of West Lake Hills. After reviewing the statutes permitting the extension of municipal areas, the Court held: 'In view of the repeated requirement of adjacency in the statutes, we do not believe that the validating statutes should be construed to a different effect in the absence of specific and express provision.' The City of Waco cites this holding and, asserting that the annexed airport property is not adjacent to the City of McGregor, says that the validating statute before us has no application.

The word 'adjacent' is used in the annexation statutes 'in the sense of being 'contiguous' and 'in the neighborhood of or in the vicinity of,' without reference to the character of the land or the use to which it is put.' State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780, 784 (1957). Whether land is adjacent to an annexing city is a law question to be decided upon the facts of each particular case. City of Irving v. Dallas County Flood Control Dist., (Tex.Sup., 1964) 383 S.W.2d 571, 576.

The following map, although not exact, reasonably shows the relative locations of the cities of McGregor and Waco and the annexed property:

NOTE: OPINION CONTAINS TABLE...