Elliott v. Joseph

Citation351 S.W.2d 879,163 Tex. 71
Decision Date18 October 1961
Docket NumberNo. A-8416,A-8416
PartiesNora Todd ELLIOTT et vir, Petitioners, v. Edward JOSEPH, Respondent.
CourtSupreme Court of Texas

Hardy Hollers, Austin, for petitioner.

Cofer & Cofer, Douglass D. Hearne, with above firm, Austin, for respondent.

CULVER, Justice.

In this suit in the district court against Nora Todd Elliott and her husband, Roy C. Elliott, Edward Joseph sought a declaratory judgment to determine what amount of rent he is obligated to pay and an injunction to restrain the Elliotts from interfering with his enjoyment of the leasehold estate which he holds upon land owned by them.

In 1946 Joseph and the Elliotts entered into a written contract by the terms of which the Elliotts leased to him a certain tract containing 12.5 acres with the option of extending the lease until March 31, 1966, at the monthly rental now in effect of $166.67. Joseph is now and has been for a number of years operating a drive-in moving picture show on the premises.

In October of 1959 the City of Austin filed proceedings to condemn 3.87 acres of this tract for the purpose of street widening. Joseph contends that under the terms of said lease and the law of the State of Texas, he is entitled to have the rental apportioned pro tanto and reduced accordingly and tendered the sum of $115 monthly rental. The Elliotts by cross-action asserted that Joseph was obligated to pay the contract rental of $166.67 per month without any proportionate reduction, prayed for judgment for accrued rentals at that rate, and sought rescission of the lease contract by reason of default.

The trial court found that the Elliotts are entitled to recover the full rental agreed to in the contract without any reduction on account of the taking by the City of Austin of the 3.87 acres and entered a take-nothing judgment against Joseph. The Court also denied Elliotts' claim for rescission of the lease contract.

The Court of Civil Appeals on its own motion held that the same issue presented in this case is to be determined in the county court in the presently pending condemnation proceedings and ordered this cause abated until final disposition of the condemnation suit, invoking the rule that after the county court has acquired jurisdiction in a condemnation suit no other court is authorized to interfere with its proceedings. One justice dissented (345 S.W.2d 297). All parties applied for writs of error insisting that the rule invoked by the Court of Civil Appeals is not applicable here. With that contention we agree.

A condemnation suit in the county court is a special proceeding and determines only the issues of the right to condemn and the amount of the damages. The trial in the county court is a de novo appellate proceeding. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788.

The county court has no power to determine the rights of the parties under the lease or to reduce the rent or to give a judgment for or against the Elliotts for the amount of rent claimed by them. It is true that the question of law as to whether or not a pro tanto abatement of rent is to be allowed upon a partial taking of the leasehold by condemnation would have a bearing upon the apportionment of damages between the landlord and tenant in the condemnation proceeding but that question will not be and cannot be resolved in the condemnation suit. What the county court will determine, so far as the tenant is concerned, is the diminished value of the lease. City of Pasadena v. Porter, 201 Cal. 381, 257 P. 526, 529, 53 A.L.R. 679, holds:

'A proceeding for the condemnation of private property under the Street Opening Act is a special statutory proceeding. The court sitting therein has no equitable jurisdiction, and accordingly, has no power to reform or revise the lease in question, nor to determine to what extent the covenant to pay rent shall be affected, if at all.'

The authorities relied upon by the majority of the Court of Civil Appeals do not support their conclusion that the same issue is involved in the county court condemnation proceedings and in this suit.

In Compton v. Texas Southeastern Gas Co., Tex.Civ.App., 315 S.W.2d 345, writ refused n. r. e., plaintiff could not maintain her suit for damages in the district court caused by the laying of a pipe line through her property by the defendant because that was exactly the issue to be determined in the pending condemnation suit in the county court. Likewise in Pickens v. Hidalgo County Water Control and Improvement District, Tex.Civ.App., 284 S.W.2d 784, no writ history, and in Texas Pipe Line Co. v. Ennis, 127 Tex. 470, 93 S.W.2d 148, the only issue presented was the amount of damages that would be suffered by the landowner as a result of the taking under the power of eminent domain. The county court was empowered to grant full relief for all damages suffered and consequently the landowners could resort to no other forum.

There is here an actual present controversy between the parties. The Elliotts contend in their cross-action that irrespective of any condemnation proceedings they are entitled to the payment of the contractual rental and asked judgment for the amount due. They also claimed the right to rescind because the rent had not been paid. Joseph on his part contended that he was entitled to a pro tanto abatement of the rent and tendered into court the rent reduced proportionately on an acreage basis. These issues could not be decided elsewhere than in the district court.

The landmark case of Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, is not applicable. In that case one of the parties had filed suit in the district court of Johnson County to cancel certain notes and the deed of trust given to secure the same. The other party had filed suit in the District Court of Dallas County to foreclose under the same deed of trust. The only question involved was the validity of the notes and deed of trust and the right of foreclosure. Both courts had potential jurisdiction. Very naturally it was held that two courts could not at the same time possess the power to make a final determination of the same controversy between the same parties, but that is not the situation we have here. The Court of Civil Appeals erred in ordering that this cause be abated until final disposition of the condemnation suit.

We now come to a consideration of the question of law presented here, namely, when there is a partial taking of a leasehold estate by condemnation and the remaining portion is susceptible of occupation whether or not the contractual monthly rental is to be abated pro tanto for the part taken during the remainder of the time of the lease. Although many courts in other jurisdictions have considered and passed upon this problem and a number of able text writers have expressed their views, we find that the question has not been decided by the Texas courts. A review of the authorities reveals that a large majority of these decisions hold that the rentals are not abated in this situation, but rather the tenant is obligated to continue the payment of the rentals provided in the lease contract and must look to an apportionment of the damages assessed against the condemning authority based on the reduced value of his lease. We are inclined to follow the majority concept.

The general rule is that when the whole of leased premises is taken under eminent domain proceedings, the lease is terminated and the tenant is no longer liable to pay rent. See Annotations 43 A.L.R. at page 1176, 3 A.L.R.2d at page 328. Joseph argues that the same rule should be applied where only a portion of the premises is taken and that there is no reasonable ground to make a distinction between the two classes of cases. A few courts have so held.

In Biddle v. Hussman, 1856, 23 Mo. 597, after condemnation by the City of St. Louis of a part of the premises leased to Hussman, the owner sued the lessee, Hussman, for the rent for the entire premises. The court held that as to the part appropriated to public use the rent was extinguished. The same result was reached in Kingsland v. Clark, 1856, 24 Mo. 24, and likewise in Barclay v. Picker, 38 Mo. 143.

In Board of Levee Commissioners v. Johnson, 1889, 66 Miss. 248, 6 So. 199, the taking of a portion of leased premises under the power of eminent domain was held to operate as an apportionment of rent and dissolved the relation of landlord and tenant pro tanto. Additionally, there are a number of text writers who urge the adoption of the minority rule. Lewis on Eminent Domain, § 438; 3 Tiffany on Real Property, 3rd ed., § 904, pp. 565, 566; 1 Orgel on Valuation Under Eminent Domain, 2nd ed. § 121, p. 522. The converse is to be found in 1 Washburn on Real Estate, 5th ed., ch. 10, § 6, p. 558, where the following statement is made:

'* * * But the better rule, and the one believed to be adopted in most States, is that such a taking operates, so far as the lessee is concerned, upon his interest as property for which the public are to make him compensation, and does not affect his liability to pay rent for the entire estate according to the tenor of the lease and this extends to ground rent; such taking does not abate any part of the rent due.'

Joseph quotes from 2 Nichols on Eminent Domain, pp. 42, 43, Note 60, the rule as follows:

'Conversely, as the tenant is not entitled to an abatement of his rent if he has been dispossessed by a disseizor, or by the public enemy, or if the premises are destroyed or rendered untenantable by earthquake, lightning, floods or fire, he remains liable in the same manner for the full amount of a rent when a portion of the leased premises are taken by eminent domain,'

but urges that the premises laid down in that statement is not the law of abatement in this state. It is the law here that where the estate from which the rent issues ceases to exist the landlord is not entitled to recover rent...

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