Hale v. Lavaca County Flood Control Dist.

• Decision Date: 16 February 1961
• Docket Number: No. 13627,13627
• Citation: 344 S.W.2d 245
• Parties: William R. HALE et ux., Appellants, v. LAVACA COUNTY FLOOD CONTROL DISTRICT et al., Appellees.
• Court: Texas Court of Appeals

Page 245

344 S.W.2d 245

William R. HALE et ux., Appellants, v.LAVACA COUNTY FLOOD CONTROL DISTRICT et al., Appellees.

No. 13627.

Court of Civil Appeals of Texas, Houston.

Feb. 16, 1961.

Rehearing Denied March 9, 1961.

Miller & Cross, James E. Cross, Yoakum, for appellant.

Armond G. Schwartz, Hallettsville, for appellees.

Gus J. Struas, County Judge of Lavaca County, Hallettsville, pro se.

WERLEIN, Justice.

Appellants appeal from a judgment sustaining appellees' plea in abatement and motion to dismiss entered by the District Court of Lavaca County, Texas, in appellants' suit against appellees, Lavaca County Flood Control District et al, to recover damages on account of trespass upon their property.Appellees in their plea in abatement asserted that the District Court had no jurisdiction over the case for the reason that the County Court of Lavaca County had entered a final judgment with respect to damages in condemnation proceedings which the Flood Control District had brought against appellants.

The trial judge made findings of fact, which are not attacked by appellants on this appeal.The Court concluded that all proceedings in connection with the condemnation of appellants' property and the judgment entered by the County Judge of Lavaca County on March 17, 1959, were regular and in accordance with law; that appellants failed to file written objections to the award within the time and in the manner required by law; and that the award and judgment, not being appealed, became final.The Court then concluded that it had no jurisdiction to hear the case.

The evidence shows that the Special Commissioners, duly appointed by the County Judge, assessed damages in the condemnation suit in the sum of 'None ($ _____) Dollars.'Since appellants did not file any objections to such award, the County Judge on March 17, 1959, acting in a ministerial capacity, caused said decision to be recorded in the Minutes of the County Court of Lavaca County as the judgment of the Court, and entered judgment vesting title in the Lavaca County Flood Control District to the right of way and easement in and over appellants' land.On September 4, 1959appellants filed this suit to recover $5,000.00 damages to their property, alleging that appellees, after having condemned and taken what purported to be the right of way, easement and property rights to a part of their homestead, as shown by the decree entered in the County Court, went on their property and excavated a great amount of soil from part of the land lying next to the Lavaca River, and greatly damaged their homestead by removing grass and top soil and certain trees.

Appellants assert that since the judgment of the Court awarded thme no damages, it is in all things void and in contravention of the Constitution of the State of Texas, Article I, Sec. 17, Vernon's Ann.St., prohibiting the taking of private property for public use without adequate compensation being made.They allege in their first supplemental petition that this suit is not an appeal from the award of the Commissioners but a suit for damages, appellants choosing to ignore a void judgment and sue the defendants for damages to their property.

The Constitution of Texas, Article I, Sec. 17, provides that, 'No person's property shall be taken, damaged or destroyed for or applied to public use without adquate compensation being made, unless by the consent of such person; * * *'(Emphasis supplied.)The question which confronts us is whether the judgment entered by the County Court upon failure of appellnts to object to the award of the Special Commissioners, is void because it decrees that appellants recover nothing.The present suit is not a direct but a collateral attack upon the judgment.The District Court properly dismissed the suit has been filed with the County Judge file attacked by appellants.

Article 3266, Vernon's Ann.Tex.St., sets out the general provisions with respect to the condemnation of property, and provides, among other things, that if either party is dissatisfied with the decision made by the Special Commissioners, such party may within 10 days after the same has been filed with the County Judg file his objection thereto in writing.If no objections are filed within 10 days, the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the Court.The judgment thus becomes the judgment of the Court, although there is no right of appeal therefrom.Pearson v. State, 1958, 159 Tex. 66, 315 S.W.2d 935.

Although the condemnation proceedings in question were regular in every way, appellants filed no objection to the award, but waited nearly six months and then filed this suit.They had the right to file objections with the clerk of the Court, in which case the jurisdiction of the Court would have attached, and they could have then established their damages in a court of competent jurisdiction.The case would have been tried in the same manner as any other civil suit in the County Court, with the right to appeal from the judgment of the County Court.By their failure to file objections to the award, appellants precluded themselves from a judicial hearing in a court of competent jurisdiction which was available to them.They were not denied due process.

In Appleby v. City of Buffalo, 1911, 221 U.S. 524, 31 S.Ct. 699, 702, 55 L.Ed. 838, the Supreme Court of the United States speaking through Mr. Justice Day said, with reference to depriving a property owner of his property without just compensation, in contravention of the Fourteenth Amendment to the Constitution of the United Sates:

'The alleged denial of Federal right rests upon the assertion that the damages were nominal, while the property taken was of greater value.But, as this court has heretofore, held, if the state has provided adequate machinery for the ascertainment of compensation, upon notice and hearing, and the record discloses no ruling of law which prevented compensation to the owner for the property taken, there is no lack of due process.'

See alsoBragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135.In North Laramie Land Co. v. Hoffman, 268 U.S. 276, 45 S.Ct. 491, 496, 69 L.Ed. 953, the Court stated: 'Having failed to adopted such procedure, the plaintiff cannot complain of a denial of due process of law.'

In the present caseappellants do not assert a denial of due process as such, but do content that the judgment in question is void because they were not awarded compensation.Article I, Sec. 17 of the State Constitution contemplates that a person's property may be taken without compensation if such person consents thereto.Due process requires that the landowner be given an opportunity to establish his damages, but he is not required to do so.He may waive or disregard such right and consent to his property being taken or damaged without payment of any compensation.In the instant case the record shows that appellants were present in person and were also represented by their attorney.They were aware of all that was being done.They made no objection whatever to the action of the Special Commissioners, although given every opportunity to do so.They...