Gulf Coast Irr. Co. v. Gary

• Decision Date: 07 March 1929
• Docket Number: (No. 1213-5231.)
• Citation: 14 S.W.2d 266
• Parties: GULF COAST IRR. CO. v. GARY.
• Court: Texas Supreme Court

14 S.W.2d 266

GULF COAST IRR. CO. v. GARY.

(No. 1213-5231.)

Commission of Appeals of Texas, Section A.

March 7, 1929.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit by J. B. Gary against the Gulf Coast Irrigation Company. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certified question to Commission of Appeals. Certified question answered.

Baker, Botts, Parker & Garwood and Barksdale Stevens, all of Houston, W. E. Davant, of Bay City, and Rodman Cosby, of Houston, for appellant.

Kelley & Hawes, of Wharton, and A. D. Dyess, of Houston, for appellee.

Statement of the Case.

CRITZ, J.

In August, 1928, in pursuance of R. C. S. Tex. 1925, art. 3264, the Gulf Coast Irrigation Company, a corporation enjoying the rights of eminent domain, failed to agree with J. B. Gary, appellee, on the amount of damages that might inure to appellee, and as a consequence filed its written petition with the county judge of Wharton county, Texas, seeking the condemnation of an irrigation canal of a strip containing 71 acres of land, across appellee's farm of about 4,000 acres of land. This petition, so far as the record shows, was in due form of law. The county judge, in conformity with law, appointed three commissioners to assess the damages, who regularly qualified as such, and gave the statutory notice of the hearing of the matter before said commissioners on September 18, 1928.

In due time, the appellee filed answer and exceptions to the petition of plaintiff, alleging in substance that his land consisted of 4,000 acres, 4 miles long and 1½ miles wide, and that the proposed canal would cut through the entire length of said land, and divide same into five different parcels of irregular shape, and, without being of any benefit to him, would damage him by requiring him to build and maintain 16 bridges across, and 4 miles of fences along the sides of, said canal; that said land was potential sulphur-bearing land, and said canal would destroy his right to mine sulphur, and other minerals adjacent to it, etc. In this answer appellee claimed damages in the total sum of $74,975, being $14,975 for the alleged market value of the land taken, and damages to the remainder of the tract of $60,000. Up to and including the filing of this answer by appellee there is no claim by either party of any illegality or irregularity in the proceedings.

After the filing of the appellee's said answer the appellant filed before said commissioners two supplemental pleadings, in reply to the said answer of the appellee, the material portions of which are set out in the certificate, as follows:

(1) "This plaintiff says: That the canal proposed to be constructed on the land described in plaintiff's petition will be constructed in such a manner that the same will not interfere with or destroy adequate and proper drainage for use of the remainder of the land through which it passes, but that the same will have proper and adequate drain ditches and underpasses where required by nature, or the drainage of the terrain and will be adequately and properly flumed at those points where same shall cross any natural drain and that no damage to the surrounding land will be occasioned by reason of the construction of the proposed canal and the maintenance thereof.

"Plaintiff denies that it is necessary for the proper handling of this land either for stock raising purposes or agricultural purposes that the right of way of the plaintiff be fenced from the surrounding land and denies the necessity for any such fence or fences as plead by the defendant.

"Plaintiff specifically denies that the right of way or any part thereof is underlaid by sulphur capable of being mined and says that no mining operations for sulphur are now under way or are contemplated along said right of way. And for further answer this plaintiff says that this condemnation does not and could not affect the minerals belonging to J. B. Gary, but that the title to same, if any, could and would remain in the said J. B. Gary, together with the right of producing the same, when not unreasonably interfering with use of the right of way of plaintiff, and here and now offers in the event that oil is sought to be produced that same may be produced upon said right of way without interference of this plaintiff, so long as same is produced in an orderly and proper way, without unreasonable interference with the use of said canal.

"Plaintiff further denies that any such necessity of the building of 16 bridges exists or could exist, and says that the plaintiff will build bridge or bridges at such point or points across said right of way as in the opinion of the commissioners is reasonably necessary.

"Plaintiff further denies that the values of said land are as stated by the defendant, J. B. Gary, but, on the contrary, says that the values of said land, so far as that portion of the right of way traversing the prairie and wood section of said land is concerned, is not in excess of $40 per acre and that the value of said land in so far as that portion of the right of way is composed of Caney land is concerned is not in excess of $100 to $125 per acre. And this plaintiff specifically alleges that the construction of the proposed canal will not injure the remainder of said land of this defendant, but on the contrary says that such canal will enhance the value of the remainder of defendant's land, will increase the income of the defendant and that such enhancement would far more than offset any damage to same by the defendant if any is sustained."

(2) "The Gulf Coast Irrigation Company, plaintiff herein, hereby agrees that the said J. B. Gary, defendant herein, his heirs or assigns and lessees, shall be in no way liable to plaintiff, its successors or assigns, by reason of subsidence of the surface of the right of way herein described by reason of the mining of oil, gas or sulphur in a proper manner upon the lands owned by the defendant adjoining said right of way or on the right of way as hereinbefore stipulated."

After the filing of the above pleadings the commissioners proceeded to hear the evidence, and at its conclusion rendered and filed with the county judge of said county the following award:

"On this the 19th day of September, A. D. 1928:

"(1) We, the commissioners, award damages to defendant J. B. Gary in the sum of $8,944.50 for value of land taken and described in plaintiff's original petition, and injuries to the remainder of the 4,000-acre tract.

"(2) We also award and adjudge that plaintiff construct and maintain 10 bridges adequate for passage of vehicles, live stock and ordinary traffic, across the right of way described in plaintiff's petition, at such points as may be designated by defendant, upon the construction of said canal.

"(3) We also adjudge and award that plaintiff construct and maintain fences across said canal at any point where present or future fences of defendant cross said canal right of way.

"(4) In arriving at amount of damages we have taken into consideration the stipulations filed by plaintiff and also those contained in its second supplemental petition on file herein.

"(5) We award all costs against plaintiff."

Thereafter appellant, after paying the accrued costs, deposited in the county court of said county double the amount of the money damages awarded by said commissioners, and also filed an approved cost bond for further costs, as required by law. Thereafter and within 10 days, as required by law, appellee filed with the county judge of Wharton county his exceptions and objections to the above award, the more material portions of which are set out in the certificate, and are as follows:

"This defendant further specially excepts to said second supplemental petition because same sets forth conditions and promises, which the plaintiff sought thereby to impose, and to which defendant has at no time agreed, which said promises are promissory in their character and relate to acts to be performed upon contingencies to arise after the act of appropriation has been completed by the payment of the award, and after the taking of the land appropriated.

"This defendant further specially excepts to said second supplemental petition of the plaintiff filed herein and with the commissioners, as aforesaid, because thereby the plaintiff sought, over the protest of the defendant and without his consent, to obtain a conditional right of way over defendant's land and sought to condemn only a right to the joint use and occupation of that part of defendant's land sought to be taken by plaintiff for right of way purposes, which would result in the conjoint occupation and use of defendant's land, to which conjoint occupation the defendant has at no time consented or agreed.

"This defendant further specially excepts to plaintiff's said second supplemental petition because under the Constitution and statutes of the state of Texas, the defendant is entitled to be compensated in money for the value of the land taken plus the depreciation in the market value of his adjoining land, by reason of the taking of said right of way and the construction and operation of the proposed canal.

"This defendant excepts generally to the purported award of said commissioners of date the 19th day of September, 1928, and filed herein on said date, for the...