Fariss v. PGP Gas Products, Inc., 13168

• Decision Date: 15 October 1980
• Docket Number: No. 13168,13168
• Parties: Max A. FARISS et ux., Appellants, v. PGP GAS PRODUCTS, INC., Appellee.
• Court: Texas Court of Appeals

Page 957

606 S.W.2d 957

Max A. FARISS et ux., Appellants, v. PGP GAS PRODUCTS, INC., Appellee.

No. 13168.

Court of Civil Appeals of Texas, Austin.

Oct. 15, 1980.

Rehearing Denied Nov. 12, 1980.

C. W. Pearcy, Austin, for appellants.

Marcus L. Thompson, Edith H. Jones, Michael A. McLaughlin, Andrews, Kurth, Campbell & Jones, Houston, for appellees.

SHANNON, Justice.

Appellee, PGP Gas Products, Inc., initiated condemnation proceedings to acquire a right-of-way easement across acreage situated in Lee County and owned by appellants, Max A. Fariss and Lanette Fariss, husband and wife. The condemnation was for the purpose of acquiring an easement for the construction, operation, and maintenance of a pipeline for the gathering and transmission of natural gas. The commissioners awarded appellants $6,000.00.

Appellants appealed the commissioners' award to the district court of Lee County. After trial to a jury, the district court entered judgment providing that appellee recover from appellants title to the easement and awarding appellants $4,703.00 of the commissioners' award that appellants had not drawn down. This Court will reverse that judgment.

Appellants attack the judgment by many points of error. Appellants' point four complains, in effect, that there is no evidence that the commissioners took the oath specifically required by Texas Rev.Civ.Stat.Ann. art. 3264.

Proceedings in eminent domain are special in character and there must be a showing by the condemnor of strict compliance with the statutes authorizing the taking of another's property for public use. City of Houston v. Kunze, 262 S.W.2d 947 (Tex.1954). The Supreme Court has consistently held that nothing is to be presumed in favor of the power of the commissioners to enter their award. Parker v. Fort Worth & D. C. Ry., 84 Tex. 333, 19 S.W. 518 (1892); City of Houston v. Kunze, supra. Strict compliance with art. 3264 must be shown in the record. City of Houston v. Kunze, supra; Maberry v. Pedernales Electric Cooperative, Inc., 493 S.W.2d 268 (Tex.Civ.App.1973, writ ref'd n. r. e.); Horton v. County of Mills, 468 S.W.2d 876 (Tex.Civ.App.1971, no writ); Estate of Crim v. State, 371 S.W.2d 574 (Tex.Civ.App.1963, no writ); Vey v. City of Fort Worth, 81 S.W.2d 228 (Tex.Civ.App.1935, writ dism'd); Parks v. City of Waco, 274 S.W. 1006 (Tex.Civ.App.1925, no writ).

The rule of State v. Jackson, 388 S.W.2d 924 (Tex.1965), that by accepting the award of the commissioners the condemnee consents to the taking and may not contend that the taking was unlawful, is not applicable to appellants because they did not draw down the award deposited by appellee after the commissioners' hearing. In fact, appellants vigorously contested appellee's compliance with the procedures necessary to exercise its right to condemn.

This Court has examined the record with care to determine whether appellee proved that the commissioners were administered the oath. Prior to calling its first witness, appellee tendered en masse a number of exhibits. The tender and counsel's response are set out below:

"MR. MUNSON: Judge, I offer by way of stipulation, in the interest of time-and the court reporter might mark them later, but I would like to offer into evidence our original petition, our first amended and our second amended petition, and if that is agreed to, we can mark them later, or I can go through this file and mark them now, whatever-if Mr. Pearcy disagrees-the-I offer into evidence and mark as Exhibit 3 the order appointing commissioners, as Exhibit 4, the oath of the commissioners, as Exhibit 5, I guess, the order of setting the hearing, 6 is the notice of the hearing showing service on the landowner. No. 7 would be the award of the commissioners. No. 8 would be the objection filed, No. 9, the deposit of the award and No. 10, the cost bond, and No. 11, this appeal bond that we-so-called appeal bond that we filed. We would just like to offer those into evidence, and in the interest of time, mark them later unless

"MR. PEARCY: If they are offered, Your Honor, for the purpose of showing that there were filed, we have no objection, and that those things occurred in the records of the case because they are records of the case.

We would-we do not want to be in a position of not objecting to them for anything they might say within them. For example, the petition may have certain allegations, and we would not agree that these allegations have been proved. We would only agree that the petition has been filed and amended and those things. We have no objection to them being admitted for that purpose."

There is no "oath of commissioners," marked or unmarked, in the envelope of exhibits filed with the Statement of Facts in this Court. Examination of the statement of facts shows the court reporter's specific notation that appellee's counsel did not provide the reporter with any instruments for use as Exhibits "4, 6, and 12." Counsel for the parties agreed that the statement of facts "... and one separate envelope of original exhibits being sent up by agreement of parties and order of the Court, constituted a full, true and correct transcript in Question and Answer form of all the testimony and proceedings had, and all documentary evidence introduced during said proceedings." (Emphasis added).

It is, of course, the burden of the party tendering an exhibit into evidence to see that the exhibit is properly identified and marked. After the exhibit has been admitted into evidence, it is likewise that party's responsibility to insure that the exhibit has been delivered into the custody of the court reporter for inclusion in the appellate record. In the case at bar, the statement of facts...