Gossett v. State, 4156
Decision Date | 21 July 1967 |
Docket Number | No. 4156,4156 |
Citation | 417 S.W.2d 730 |
Parties | Ralph W. GOSSETT et al., Appellants, v. The STATE of Texas, Appellee. . Eastland |
Court | Texas Court of Appeals |
W. H. Eyssen, Jr., Big Spring, H. P. Kucera, Dallas, of Counsel, Gossett, Randle, McCloud & Hand, Dallas, for appellants.
Guilford Jones, Dee Jon Davis, County Atty., Big Spring, for appellee.
The State of Texas and Howard County, in December of 1965, instituted condemnation proceedings, filing with the County Judge of Howard County, a statement in condemnation praying for the appointment of Commissioners to assess damages for the taking of approximately 2.907 acres of land referred to as tract 13 belonging to Ralph W. Gossett, James D. Gossett and Elmer Tarbox, vesting title thereto in The State of Texas, for highway purposes, to be paid for by the County of Howard. Commissioners were appointed and after due notice an award of $114,503.00 was made to defendants for the taking. Thereafter the County of Howard made a deposit of the amount of the award in the registry of the court, asserting that plaintiffs were thereupon entitled to immediate possession of said property. The defendants withdrew the deposit from the registry of the court. They also filed their exceptions to the award and appealed to the County Court . The trial in the County Court was before a jury and based upon the verdict, judgment was rendered for the defendants for.$103,860.11, of which $94,971.69 was payment for land taken and $8,888.42 was for damages to the remainder of defendants' land and improvements. It was further adjudged and decreed that the County of Howard have judgment against each of the defendants, jointly and severally, for $10,642.89, the amount they had received in excess of the judgment, with 6% Interest thereon from January 20, 1966. The defendants have appealed.
In numerous points, appellants contend that the property in question, which is in the City limits of Big Spring, is not subject to condemnation by Howard County in the absence of allegations and proof of consent on the part of the City. They assert that the County Court had no jurisdiction to proceed under Article 3266 Vernon's Ann.Tex.Civ.St. because Article 1175, Subdivision 19, V.A.T .C.S. vests exclusive dominion and control of public streets in the City of Big Spring; that if Howard County was attempting to proceed under Article 6674n or 6674n--2 V.A.T.C.S. there is no allegation or proof that the City of Big Spring had consented to such proceeding prior to the filing of the petition with the County Judge requesting the appointment of special commissioners; that if the State is attempting to proceed under Article 6674n there is no allegation or proof that Howard County refused to acquire the property necessary for the widening and improvement of the intersection of Gregg and Marcy Drive within the City of Big Spring. These points are overruled.
Plaintiffs' statement in condemnation was filed on December 28, 1965, with the County Judge of Howard County by the State of Texas and Howard County acting by and through the Commissioners Court of Howard County. The statement contained all the statutory allegations required for condemnation of land in such cases. It recited that the State was 'constructing, laying out, and reconstructing a highway' as a part of the State highway system in Howard County and that the survey ran across and upon the land in question which the Highway Commission and the Howard County Commissioners Court had found and determined to be needed for that purpose and that the county had been unable to agree with the owners of upon the value of the land needed or the damages. On January 28, 1966, after due notice, the Special Commissioners appointed by the County Judge convened and after hearing awarded damages to appellants in the sum of $114,503.00. The plaintiffs desired to take immediate possession of the property and Howard County deposited in the registry of the court its check for the amount of the award. The defendants appealed alleging 'that the award made by the Special Commissioners does not represent the true value of the property to be taken or the damages accruing to defendants by reason of said proposed acquisition but that in fact such value so found by said Commissioners was grossly and totally inadequate.' Appellants withdrew from the registry of the court the $114,503.00 deposited by Howard County. At the trial, appellants entered into a written stipulation admitting that appellee had 'complied with all the prerequisities under the law so that this court has jurisdiction of this cause--and that the only remaining issues in this cause are: (a) the reasonable market value of the land and improvements taken; (b) damages to the remainder of defendants' property.'
The record reveals no complaint by appellants in the hearing before the Special Commissioners of the illegality of the taking. There was no showing that the City of Big Spring failed to give its consent. As heretofore noted appellants accepted the benefits of the award by withdrawing the funds deposited. Appellants invoked the jurisdiction of the County Court by appealing thereto and by pleadings filed therein. Appellants did not at the trial make known to the County Court their claim that the County lacked the power to condemn. The record does not present facts which show an illegal taking. We cannot presume the existence of such facts. Under the facts of this record appellants cannot question the power of the county to take their land. County of Jim Wells v. Cook, 410 S.W.2d 325, (Tex.Civ.App.1966). It is well established that the owner of land who accepts the amount awarded by special commissioners in a condemnation proceeding cannot thereafter question the power of the condemnor to take the land. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477 (1897); State v. Jackson, 388 S.W.2d 924, (Sup . Ct.1965); Luby v. City of Dallas, 396 S.W.2d 192, (Tex.Civ.App.1965, writ ref. n.r.e.).
Our Supreme Court in State v. Jackson, supra, where the State failed to prove facts said to be essential to the jurisdiction of the trial court, stated the law in such cases as follows:
Appellants contend that the court erred in rendering judgment for appellee because the County Judge was disqualified to appoint commissioners to assess damages and to preside at the trial. They assert that it affirmatively appears from the record that Howard County is the real party at interest herein and that Judge Porter is the presiding officer of the Commissioners Court and also the County Judge. This point is overruled. There is no showing and we do not understand appellants to contend that the County Judge had any interest in the case other than as a taxpayer and as a member of the Commissioners Court. It is held that such remote and problematical interests do not constitute disqualification. The well established authority in Texas is to the effect that under the facts here shown a County Judge is not disqualified to preside over condemnation proceedings. McInnis v. Brown County Water Improvement District No. 1, 41 S.W.2d 741. (Tex.Civ.App.1931, writ refused); Angier v. Balser, 48 S.W.2d 668 (Tex.Civ.App.1932, writ refused); Thompson v. State, 165 S.W.2d 131, (Tex.Civ.App.1942, no writ history); Smith v. Elliott, 149 S.W.2d 1067 (Tex.Civ.App.1941); Wagner v. State, 217 S.W.2d 463 (Tex.Civ.App.1948, writ ref. n.r.e.).
This cause was number 3043 on the docket of the County Court and involved damages for the taking of a portion of a tract of land owned by appellants in equal one-third undivided interests, said land being designated and referred to herein as tract 13. The portion of tract 13 taken amounted to 2.907 acres. The remainder of said tract was 0.583 acres. The tract lies south of Marcy Drive in the City of Big Spring. In numerous points appellants contend that the court erred in refusing to consolidate this cause with cause number 3044 on the docket of the County Court which involves the taking of a portion of a tract of land referred to as tract 14. Tract 14 joins and lies immediately South of tract number 13. The portion of tract 14 sought to be taken is .062 acres fronting on Gregg Street and the remainder is 2.338 acres. Appellants also contend that the court erred in refusing to permit them to introduce evidence showing that they were owners of not only tracts 13 and 14 but also owners of a 12 acre tract immediately South of tract number 14 referred to by appellants as tract number 12. There is no taking from tract 12. Appellants contend that the three tracts should be considered as a unit and damages assessed to the remainder of the combined tracts suffered by the...
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