Clements v. Fort Worth & D. S. P. Ry. Co.

• Decision Date: 18 April 1928
• Docket Number: (No. 2958.)
• Citation: 7 S.W.2d 895
• Parties: CLEMENTS v. FORT WORTH & D. S. P. RY. CO.
• Court: Texas Court of Appeals

7 S.W.2d 895

CLEMENTS v. FORT WORTH & D. S. P. RY. CO.

(No. 2958.)

Court of Civil Appeals of Texas. Amarillo.

April 18, 1928.

Rehearing Denied June 20, 1928.

Appeal from Castro County Court; J. F. Easter, Judge.

Eminent domain proceedings of the Fort Worth & Denver South Plains Railway Company against Solon Clements. From a judgment fixing the amount of defendant's damages, he appeals. Reversed, and condemnation proceeding set aside, and cause dismissed.

Reeder & Reeder, of Amarillo, and Dennis Zimmermann, of Tulia, for appellant.

Mark Cowsert, of Dimmitt, and Carl Gilliland, of Hereford, for appellee.

HALL, C. J.

This proceeding was instituted May 3, 1927, in name of the appellee, railway company, against the appellant, Clements, for the purpose of condemning a right of way over three certain sections of land belonging to appellant and situated in Castro county. On the same day, County Judge W. R. Avery certified his disqualification to try the case, and on May 7, 1927, the Governor, acting upon the certificate, appointed Hon. J. F. Easter as special judge to try this and other cases mentioned in the certificate. On May 12, 1927, Easter took the oath as special judge, and on the same day appointed Perry Graham, Sid Sheffy, and Ester Noble special commissioners to appraise the property and assess the damages. The commissioners so appointed were duly sworn on the same day, and issued a notice to appellant naming the 20th day of May as the day for hearing, which notice was served on the appellant on May 14, 1927.

Before the hearing on May 20, 1027, appellant filed and presented to Special Judge Easter his exceptions to the special judge's jurisdiction, based upon the following grounds:

(1) That no law now exists under which appellee, railway company, can condemn private property for railway purposes.

(2) That no effort had been made by the railway company prior to the date upon which said exceptions were filed to agree with appellant upon the amount of his damages.

(3) That no attempt was ever made by the railway company to agree with appellant on a special judge to try the cause.

(4) That the proceeding is not, in fact, one instituted by the railway company to condemn property for railway purposes, but is a proceeding by a local guaranty committee.

These exceptions were overruled by the special judge upon the ground that they were premature and irregularly presented at that time, and should be withheld until a later date.

On the same day, the appellant filed and urged objections to the commissioners which had been appointed by the special judge, such objections being, in substance, as follows:

(1) That the said special judge had no power and no authority to appoint said commissioners, because, prior to the appointment of said commissioners, no bona fide effort had been made by the railway company or any one else to agree with the appellant as to the damages to his land and the value of the land to be actually taken for right of way purposes.

(2) Because no effort was made by the railway company or any one else to agree with appellant on a special judge to try this cause, prior to the time the disqualification of the regular judge was certified to the Governor and the special judge appointed.

(3) Because Perry Graham, one of the commissioners appointed, is a nephew of C. F. Kerr, and the said Kerr is bound by a contract, with others known as the guaranty committee, to procure, pay for, and secure for the railway company the right of way and to pay all the expenses and damages necessary to procuring the same.

(4) Because Sid Sheffy, one of the commissioners, is a brother of Ray Sheffy, and that Ray Sheffy is on the guaranty committee and bound to pay for and secure the right of way for the railway company.

(5) Because Commissioner Ester Noble is a son of A. G. Noble, and the latter is on said guaranty committee, and is bound, with the other members of the committee, to secure and pay for the right of way for the railway company,

These exceptions and objections were also overruled by the special judge, upon the ground that they were presented at the wrong time and should come before him at a later date when the case should be before him on appeal.

On May 20, 1927, the commissioners so appointed made their report, awarding appellant $1,800, that being the value of the land taken for and included in the right of way.

On May 28, 1927, the appellant filed his exceptions to the award of the commissioners, which are, in substance, as follows:

(1) There is no law authorizing condemnation of private property for railway purposes in Texas.

(2) No bona fide effort of any kind was ever made by appellee, prior to the institution of these proceedings, to agree with appellant upon the amount of damages.

(3) Because no bona fide effort was made by the railway company, prior to the appointment of said special judge, to agree with appellant on a special judge to appoint appraisers and try the cause.

(4) Because this proceeding is, in fact, one prosecuted by a local guaranty committee in the name of the railway company, and is not, in fact, a proceeding by the railway company.

(5) Because the special judge herein appointed commissioners to appraise appellant's property and assess his damages without any effort having been made by the appellee, railway company, or the guaranty committee, to agree with him upon the amount of his damages.

(6) Because the commissioners appointed by the special judge were not disinterested persons, as required by law, and were not qualified to act as appraisers for the following reasons: (a) Commissioner Perry Graham is a cousin of C. F. Kerr, who is a member of the guaranty committee; (b) Commissioner Sid Sheffy is a brother of Ray Sheffy, a member of the guaranty committee; and (c) Commissioner Ester Noble is a son of A. G. Noble, who is another member of the Guaranty Committee.

(7) Because the amount awarded for the value of the land actually taken is grossly inadequate and unjust and is not supported by the evidence.

(8) Because the whole proceeding to date is not authorized by law and is contrary to law and is void.

On June 22d, at a regular term of the court, in addition to the exceptions to the commissioners' report, appellant filed another motion to quash and set aside the entire proceedings upon the following additional ground:

(1) Because a guaranty contract is in existence, signed by Bruce McLean and 34 other citizens of Castro county, wherein said guaranty committee have bound themselves jointly and severally to procure the property of this appellant, as well as the right of way across other property through Castro county, paying all expenses and damages incident thereto, and to deliver the title to such right of way to the railway company.

These exceptions and motions were set down for hearing and heard by the special judge on August 1, 1927, and were in all things overruled by the court, to which the appellant duly excepted.

On June 22, 1927, the appellant filed his original answer, consisting of a general demurrer, general denial, and setting out in detail how his land would be cut into inconvenient shape, alleging the value of the land taken, the damages to the land not taken, and prayed that the appellee take nothing, and, in the alternative, for the amount of his damages.

On August 1, 1927, the case was tried and the issues of fact submitted to a jury, the findings being, in substance, that the land actually taken and included in the right of way was of the value of $1,472.55, and that the remainder of the land not taken was not damaged in any amount. From a judgment entered in accordance with such verdict, this appeal is prosecuted.

The first contention to be considered is that because no effort was made by the appellee to agree with appellant upon the amount of his damages, prior to the time the proceedings to condemn the land were instituted, the court had no jurisdiction. We sustain this contention. R. S. art. 3264, provides that when a party entitled to condemn property and "desiring to condemn the property after having failed to agree with the owner of the land on the amount of damages shall file a statement in writing with the county judge of the county in which the land or a part thereof is situated," etc.

The party seeking to condemn is required, as a condition precedent to the institution of proceedings for that purpose, to make a bona fide effort to agree with the owner of the land upon the amount of his damages. The purpose of this rule is to save time and expense incident to a condemnation proceeding, where an agreement is possible. As stated in 2 Nichols on Em. Dom. (2d Ed.) 1026, § 377:

"It is, of course, perfectly competent for the Legislature to grant the power of eminent domain subject to the condition that the required land cannot be obtained by purchase, and in such case, unless there is a bona fide attempt on the part of the condemning party to induce the owner to sell the land at a reasonable figure, the condition under which the power is...