Cole v. Texas Power & Light Co., 15239

Decision Date18 October 1957
Docket NumberNo. 15239,15239
Citation306 S.W.2d 762
CourtTexas Court of Appeals
PartiesE. Gladys COLE et al., Appellants, v. TEXAS POWER & LIGHT CO., Appellee.

Eades & Eades, Eric Eades, Jr., Dallas, for appellants.

Burford, Ryburn, Hincks & Ford, Clarence A. Guittard and Cooper Blankenship, Dallas, for appellee.

CRAMER, Justice.

Our former opinion herein is withdrawn and the following opinion is now adopted in lieu thereof.

Appellee Texas Power & Light Company filed this eminent domain proceeding in County Court of Dallas County No. 1 against appellants E. Gladys Cole and others to condemn an easement or right-of-way (limited in many respects) over land belonging to appellants. After the Commissioners' award was duly appealed to the County Court a jury there, on special issues, found: (1) The reasonable cash market value of the 50-foot strip of land covered by the right-of-way or easement involved here immediately before the easement was condemned December 5, 1955, considered as severed land, was $1,007; (2) the reasonable cash market value of said land immediately after the easement was condemned, considered as severed land, was $750; (3) the reasonable cash market value of the remaining part of appellants' land, not including said 50-foot right-of-way or easement immediately before the taking was $6,375; and (4) the reasonable cash market value of the remaining part, not including the 50-foot right-of-way or easement, immediately after the taking was $6,075.

Under such findings the trial court entered judgment in favor of appellants for $557, and for the Light Company for a limited easement over appellants' land on which to construct an electric transmission line to be used 'for transmitting and transporting electric current and power.'

The judgment goes into considerable detail as to the use to be made of the condemned property and the limitations in its use, most of which details we shall not copy here as they are not material to this appeal.

The controversy here revolves around events which led to the inclusion of this provision in the judgment:

'It is further ordered, adjudged and decreed by the court that the easement and right-of-way herein recovered by plaintiff, Texas Power & Light Company, shall be subordinate to defendants' right to enter upon the land covered by such easement and right-of-way for the purpose of removing sand and gravel therefrom until May 1, 1957.'

The original petition of appellee does not contain any allegations which would subordinate its easement to any right of the landowners to enter upon the land covered by such easement for the purpose of removing sand and gravel therefrom until May 1, 1957. No such limitation on the easement was included in appellee's application when evidence was submitted to the Commissioners with reference to the value of the property taken. Therefore no such limitation could have been included when the Commissioners' award of $750 was rendered on November 14, 1955.

The appellants on November 18, 1955, duly filed their objections to the Commissioners' decision and took appropriate action to perfect their appeal to the County Court at Law. On December 5, 1955, appellee paid double the amount of the Commissioners' award into the registry of the court; thus making December 5, 1955, the date of the taking of the property by appellee. Prior to the trial in County Court it was stipulated by the parties that December 5, 1955, was the date of the taking of the property.

On April 30, 1956, some months after the date of the Commissioners' award and some months after the date of the taking of the property by appellee and while appellants' appeal was pending in the County Court, appellee filed a supplemental petition in which for the first time it pleaded that the condemnation did not require interference with defendants' right to enter upon the land in question for the purpose of removing sand and gravel until May 1, 1957. The material part of this pleading was:

'Plaintiff says that the purposes for which the easement described in its original petition is being taken do not require any interference with defendants' right to enter upon the land in question for the purpose of removing sand and gravel therefrom until May 1, 1957. Consequently, plaintiff says that until such date, said easement shall be subordinate to defendants' right to enter upon said land for such purpose, and plaintiff will make whatever arrangements may be necessary to permit such operations.'

Appellants on May 4, 1956, filed their motion to strike appellee's supplemental petition for the following reasons: (1) the said petition was really an amendment which sought to limit or change the property which had already been taken on December 5, 1955, and that there was nothing in appellee's original petition to so limit or restrict appellee's rights in the property condemned; (2) that the award of the special Commissioners assessing the damages occasioned by the condemnation was based upon said original petition and upon the properties and rights and obligations therein described; (3) that the appellee thereafter on December 5, 1955, paid the amount of the Commissioners' award into the treasury of the court, and as of that date took possession of appellants' property pursuant to the rights and limitations described in their original petition, and cannot by amendment thereafter seek to limit the operation of such easement, having already taken complete control and right of possession of said easement as set out in appellee's original petition as of December 5, 1955, and the appellants herein are entitled to compensation measured by the value of the property taken and the injury to the property left, unaffected by appellee's promise thereafter made that it would not, before May 1, 1957, deprive appellants of the use and enjoyment of their land included within the condemnation proceedings; (4) that the allegations in appellee's said supplemental petition constituted merely unaccepted promissory statements of future intentions by the condemner as to what will be done or will not be done with respect to the property already taken by appellee and with respect to the rights of appellants in relation thereto and cannot as a matter of law affect either the character or extent of the condemner's rights already acquired on December 5, 1955, or the amount of damages appellee must pay as just compensation to appellants for the taking of their property on December 5, 1955; and (5) that appellee under the law cannot avail itself of a conditional or piecemeal condemnation, but must take whatever rights are sought to be appropriated as of the date of the taking and must pay in full therefor regardless of future intentions.

Appellants' motion to dismiss the supplemental petition was overruled and the appellants duly excepted.

Thereafter at the beginning of the trial of the cause in County Court on the 7th day of May, 1956, counsel for appellee made an opening statement to the jury that appellee would not actually use the easement until May 1, 1957, that appellants had until that time to remove sand and gravel, and that appellee would do anything necessary to permit them to remove same. This statement to the jury was objected to by appellants, but said objection was by the...

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2 cases
  • Texas Power & Light Co. v. Cole
    • United States
    • Texas Supreme Court
    • April 30, 1958
    ...after a trial to a jury, the award was reduced to $557. The defendants appealed and the Court of Civil Appeals reversed and remanded. 306 S.W.2d 762. We reverse the judgment of the Court of Civil Appeals and affirm that of the County Court at Law No. The case turns upon the interpretation a......
  • Coastal Indus. Water Authority v. Celanese Corp. of America
    • United States
    • Texas Court of Appeals
    • March 1, 1979
    ...389 S.W.2d 712 (Tex.Civ.App. Dallas 1965, writ ref'd n. r. e.). The interest in land taken must be definite and clear. Cole v. Texas Power & Light Co., 306 S.W.2d 762 (Tex.Civ.App. Dallas 1957, rev'd on other grounds, 158 Tex. 495, 313 S.W.2d 524). The description of the extent and use of t......

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