Compton v. Texas Southeastern Gas Co., 13272

• Citation: 315 S.W.2d 345
• Decision Date: 10 July 1958
• Docket Number: No. 13272,13272
• Parties: Willene COMPTON, Appellant, v. TEXAS SOUTHEASTERN GAS COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 345

315 S.W.2d 345

Willene COMPTON, Appellant, v. TEXAS SOUTHEASTERN GAS COMPANY, Appellee.

No. 13272.

Court of Civil Appeals of Texas, Houston.

July 10, 1958.

Rehearing Denied Aug. 7, 1958.

Fred W. Moore, Houston, for appellant.

Miller & Allen, J. K. Allen, Columbus, for appellee.

WOODRUFF, Justice.

Appellant, Willene Compton, on December 26, 1957, sued appellee, Texas Southeastern Gas Compnay, in the District Court of Waller County, Texas, for damages, alleging a trespass upon her land described only as a 53.5 acre tract. Such trespass, she alleged, was occasioned by the laying of a pipeline thereon without having acquired an easement. In addition to damages, she sought injunctive relief. On the same day she obtained a temporary restraining order prohibiting appellee's employees from coming upon the land, and her application for a temporary injunction was set for a day subsequent.

Responding thereto, appellee filed its motion to dissolve the restraining order, alleging that the District Court was without jurisdiction to grant such relief because of the prior pendency of a condemnation suit instituted in the County Court of Waller County in Cause No. 1494, styled 'Texas Southeastern Gas Company v. Willene Compton', filed by appellee to acquire a right-of-way across certain lands of appellant, including the 53.5 acre tract, and alleging that a hearing was held before the special commissioners appointed to assess damages on December 20, 1957. It was further alleged that the Commissioners had made their award and appellant had filed her exceptions thereto and had appealed to the County Court of Waller County. Subject to its motion to dissolve, appellee answered and pled as an affirmative defense the prior condemnation proceedings and denied any unlawful entry upon the appellant's land.

The motion to dissolve and appellant's application for a temporary injunction came on for hearing before the District Court on January 14, 1958, and at the conclusion thereof judgment was rendered dissolving the temporary restraining order and denying appellant a temporary injunction because of the prior pendency of the condemnation proceedings in the County Court. From the action of the Court in refusing to grant the temporary injunction, appellant has perfected this appeal.

Appellant relies on six Points of Error for a reversal. In the first three Points she contends that the land described in the condemnation proceedings was specifically limited to two tracts of land and did not include any part of the 53.5 acre tract and, therefore, the County Court never acquired jurisdiction over any part thereof. In the remaining points she contends that her suit is for damages done to her timber and crops occasioned by appellee's continued unlawful entry and trespass upon her lands, including the 53.5 acre tract, without having filed suit to condemn.

By three Counter-Points, appellee asserts that there was no error in the trial court's action in dissolving the temporary restraining order because the County Court of Waller County had acquired jurisdiction of the land in the condemnation proceedings before the filing of this cause in the District Court.

In support of its motion to dissolve appellee, upon the hearing in the District Court, offered in evidence its first amended original petition filed December 10, 1957, in the condemnation suit styled 'Texas Southeastern Gas Company v. Willene Compton' originally instituted on October 10, 1957, wherein the property sought to be condemned as the right-of-way was described as follows:

'As a necessary incident to the building of said pipe line and appurtenances, * * * plaintiff will have to acquire an easement, * * *, for the purposes hereinafter specified, over, across and upon the following described tract of land, situated in Waller County, Texas, to-wit:

'All that certain tract or parcel of land lying and being situated in Waller County, Texas, being part of the Justo Liendo 5 Leagues Grant, being part of the 66.5 acres tract conveyed by E. D. Sorsby to Willene Compton by deed recorded in Volume 105, Page 166, Waller County Deed Records and being part of the 652 acres tract conveyed by Laura B. Harris to Willene Compton by deed recorded in Volume 90 Page 583 Waller County Deed Records.

'The right of way and easement sought to be condemned herein being fifty (50) feet in width throughout and extending on, over, under and across the above described property, the center line of said easement and right of way being more fully described as follows:

'Beginning at a point in the Northwest line of the 66.5 acres tract conveyed by E. D. Sorsby to Willene Compton, said point being the center line of a 50 foot right-of-way at Station 138+09 and being N 54 E 545 feet from the West corner of said 66.5 acres tract and being West 1688.2 varas and North 1124.3 varas from the Northeast corner of the Chas. Donoho League. Thence N 54 E 33.0 feet to corner in N.W. line of 66.5 acre tract. Thence S 74 E 2462 feet to a point N 16 E 25 feet from center line Station 113+25 which is on the East bank of a creek. Thence S 72 deg. 20 min. E 1764.0 feet to a point N 17 deg. 40 min E from Station 95+61. Thence S 63~50' E 2371 feet to a point 25 feet N 27 deg. 10 min. E from Station 71+90. Thence S 80 deg. 45 min. E 976.2 feet to corner in the East line of the 652 acre tract. Thence South at 26 feet pass center line Station 62+06, which is North 1298.5 feet from the most Eastern Southeast corner of the 652 acre tract, at 52.0 feet corner in the East line of said 652 acre tract. Thence N 80 deg. 45 min. W 991.8 feet to a point S 9 deg. 15 min. W from Station 71+90. Thence N 63 deg. 50 min. W 2371 feet to point S 27 deg. 10 min. W from center line Station 95+61. Thence N 72 deg. 20 min. W 1764 feet to a point S 17 deg. 10 min. W 25 feet from center line Station 113+25, which is on the East bank of a creek. Thence N 74 W 2506 feet to corner in the Northwest line of the 66.5 acres tract. Thence N 54 E 33.0 feet to the place of beginning, containing 8.72 acres of land.'

Appellant offered in evidence her answer and cross-action in the condemnation proceedings, wherein she specially excepted to the sufficiency of the description of the property and sought actual and exemplary damages for the trespass in excess of $10,500.

As a part of its proof appellee offered the County Judge's order dated December 10, 1957, appointing special commissioners in the condemnation suit, their award dated December 20, 1957, and appellant's objections thereto filed in the County Court dated December 28, 1957, together with the two deeds, one being from E. D. Sorsby et ux. to Willene Compton conveying a 66.5 acre tract and the other from Laura B. Harris to Willene Compton conveying a 652 acre tract, both in the Justo Liendo 5 Leagues Grant. Appellant also tendered these deeds together with a deed from Laura B. Harris to Willene Compton conveying a 53.5 acre tract in the Justo Liendo 5 Leagues Grant once owned by Sybil Glenn Bock. She then offered a map showing the three tracts described in these deeds, which had been prepared at her request by C. H. Urban, the County Surveyor of Waller County. It showed the large tract of 652 acres on the east extending much farther north and south than the other two tracts. Most of its lines were shown to run due north, south, east or west. Adjacent to the southwest part of the 652 acre Harris Tract lies the 53.5 acre tract hereinafter referred to as the 'Bock' tract. It is a rectangle with its longer sides running north 30 degrees West. Its corners, therefore, lie almost at the four cardinal points of the compass. As the result, its east corner notches deeply into the lower west side of the Harris tract a short distance above the latter's south line. The third tract shown on the map owned by appellant is the 66.5 acre tract known as the 'Sorsby' tract. It lies parallel with and adjoins the Bock...