Gill v. Falls County

• Citation: 243 S.W.2d 277
• Decision Date: 27 September 1951
• Docket Number: No. 3018,3018
• Parties: GILL et al. v. FALLS COUNTY et al.
• Court: Texas Court of Appeals

Page 277

243 S.W.2d 277

GILL et al. v. FALLS COUNTY et al.

No. 3018.

Court of Civil Appeals of Texas, Waco.

Sept. 27, 1951.

Rehearing Denied Nov. 8, 1951.

Taylor & Dickens and Carter & Carter, Marlin, for appellants.

Dodson & Reagan, Marlin, for appellees.

LESTER, Chief Justice.

The State of Texas, through the Commissioners Court of Falls County, filed condemnation proceedings to condemn a strip of land for the construction of a farm to market road to run over and through the land of the appellants. The County Judge appointed special commissioners to assess the damages and notice was given to the appellants of the place and time of hearing. On the date set the Commissioners met and assessed the damages. Appellants thereafter filed their exceptions and objections to the findings and report of the Commissioners on several grounds, one of which was that there was never any attempt upon the part of the Commissioners Court to make an agreement with the appellants as to the amount of damages they would suffer if said land was condemned.

Thereafter, while said proceedings were still pending in the County Court, the appellants filed in the District Court of Falls County their application for a temporary restraining order, seeking to enjoin the appellees from interfering with the quiet and peaceful possession of their property. They further prayed that after a hearing a temporary injunction be granted and upon final hearing that it be made permanent. Their application, in part, was founded upon the allegation that the proceedings had before the County Judge or in the County Court were void in that no bona fide attempt was made to reach an agreement with the parties as to the value of their property to be taken or the damages the appellants would sustain if their land was condemned.

On the day appellants filed their petition for injunctive relief in the District Court, the court, in chambers, upon an ex parte hearing, granted a temporary restraining order pending hearing for temporary injunction. Upon the hearing for temporary restraining order appellants introduced three exhibits: the petition filed by the State, the report of the special commissioners and the exceptions and objections filed by the appellants. Three of the appellants also appeared and testified, and from their testimony it appears that no bona fide effort was made to reach an agreement with the appellants for the value of their land. Prior to the hearing for a temporary injunction the appellees filed their plea in abatement, in which they set up the fact that condemnation proceedings were pending in the County Court and set out all the various steps that had been taken in said proceedings, and prayed that the temporary restraining order theretofore granted be dissolved and that the suit for injunction be dismissed. All parties, through their respective attorneys, appeared at the hearing for temporary injunction and submitted the matter to the court upon the pleadings and exhibits, and after the argument of counsel the court held that it did not have jurisdiction of the controversy and dismissed the same. The appellants have appealed.

The first three propositions asserted by appellants are:

'(1) The State, appellee herein, having failed to make any bona fide effort to agree with plaintiffs, the appellants herein, on the amount of damages and the value of their property sought to be taken, the condemnation proceedings in the County Court are void.

'(2) The undisputed facts showing definitely that there was no effort made to reach an agreement with the owners of the land on the amount of compensation or damages to be paid them for the value of their property sought to be taken, as required by the statutes, the County Court was without jurisdiction to condemn appellants' property; and, therefore, the proceedings in the County Court seeking to condemn said land are void.

'(3) Where the State seeks to take the land owner's property for the purpose of establishing a road thereon and the condemnation proceedings in the County Court are void because of failure of Commissioners Court to comply with the statute in attempting to agree with the land owner on the amount of compensation or damages, the County Court is without jurisdiction and the District Court shall, under such circumstances, grant the land owner injunctive relief.'

In support of these points appellants cite: Article 3264 to 3271, inclusive, and Article 6674n, Vernon's Ann.Civ.Stats., Haverbekken v. Hale, County Judge, 109 Tex. 106, 204 S.W. 1162; Easter Oil Corporation v. Wilbarger County, Tex.Civ.App., 30 S.W.2d 438; State v. Davis, Tex.Civ.App., 139 S.W.2d 638; Brinton v. Houston Lighting & Power Co., Tex.Civ.App., 175 S.W.2d 707; Watt v. Studer, Tex.Civ.App., 22 S.W.2d 709. We have read all of the authorities cited but are of the opinion that they are not controlling on either of the above propositions asserted by the appellants.

Article 3264, Vernon's Ann.Civ.Stats., reads: 'Sec. 1. When real estate is desired for public use by the State or by a county * * * the party 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.'

Article 6674n, relating to condemnation proceedings by the State Highway Commission throught the Commissioners Court, provides that the proceeding shall be the same as that set out in Articles 3264 to 3271, inclusive.

Appellants cite and strongly rely upon the case of Haverbekken v. Hale, County Judge, supra (109 Tex. 106, 204 S.W. 1163). This case involved the proceedings of a Commissioners Court to open a new road. The law at that time pertaining to the powers and duties of the Commissioners Court of a county to open a new road of the class that was proposed to be opened and the procedure to be followed was controlled by the following articles of the 1920 Edition of Vernon's Complete Texas Statutes of Texas:

Article 6860 provided: 'The Commissioners' Courts of the several counties shall have full powers and it shall be their duty to order the laying out and opening of public roads when necessary'. (Vernon's Ann.Civ.St. art. 6703.)

Article 6876 provided in part: 'All applications for a new road * * * shall be by petition to the Commissioners' Court, signed by at least eight freeholders in the precinct or precincts in which such road is desired to be made'. (Vernon's Ann.Civ.St. arts. 6703-6705, 6711.)

Article 6875 provided in part: 'The Commissioners' Court shall in no instance grant an order on an application for any new road * * * unless the persons making application therefor, or some one of them, shall have given at least twenty days' notice * * *.' (Vernon's Ann.Civ.St. art. 6705.)

The Supreme Court held that a petition signed by at least eight freeholders and the giving of notice as required were prerequisites to be performed in order to confer jurisdiction upon the Commissioners Court to grant the petition and to proceed further in the matter. The failure to comply with the law in this respect rendered the proceeding void, and further held that by virtue of Section 8 of Article 5 of the Constitution, Vernon's Ann.St., and Article 1706 of the Statutes (Vernon's Ann.Civ.St. arts. 1907-1909), the District Court has general supervisory control over the Commissioners Court and that its supervisory control may be exercised through its...