Isaac v. City of Houston, 9760.

• Citation: 60 S.W.2d 543
• Decision Date: 06 April 1933
• Docket Number: No. 9760.,9760.
• Parties: ISAAC v. CITY OF HOUSTON.
• Court: Texas Court of Appeals

60 S.W.2d 543

ISAAC v. CITY OF HOUSTON.

No. 9760.

Court of Civil Appeals of Texas. Galveston.

April 6, 1933.

Rehearing Denied May 4, 1933.

Appeal from County Court at Law, Harris County; Nat H. Davis, Judge.

Condemnation proceedings by the City of Houston against Ed. C. Isaac and others. From judgment for plaintiff, named defendant appeals.

Reversed and remanded.

Blanchard & Woodul, Thomas H. Stone, and T. B. Blanchard, all of Houston, for appellant.

Sam Neathery, L. W. Cutrer, and Geo. D. Neal, all of Houston, for appellee.

LANE, Justice.

On the 20th day of June, 1930, the city of Houston filed its petition for the purpose of condemning 8,496 square feet of land, described in the petition, out of a tract of land belonging to Ed. C. Isaac, for the purpose of widening a street in said city. In the petition the city asked for the appointment of commissioners to assess damages which defendant might suffer by reason of the taking of said land. It asked for a fee-simple title to the land sought to be condemned. Joseph Isaac, Sr., John Ross, Louis Hoop, and Charles Hoop were made parties defendant; it being alleged that such parties were claiming some interest in the land.

Upon the filing of the petition the judge of the court appointed three commissioners for the purpose of assessing such damages as might be sustained by defendant by reason of the condemnation of the land.

It was alleged that the city of Houston, by resolution, had ordered the condemnation of the land for street purposes; that the city had been unable to agree with the owners of the land on a price at which such land might be purchased; that it had made an offer to defendant, Ed. C. Isaac, to purchase the land at what it considered to be a fair price, and that such offer was by Isaac refused, thereby necessitating the filing of the suit to condemn said land. Attached to the petition was a copy of the resolution of the city council, above mentioned, which was made a part of the petition as "Exhibit A."

On the 23d day of June, 1930, the commissioners appointed issued a notice to be served upon all parties defendant fixing July 2, 1930, as a time for a hearing on damages. The return of the officer serving such notice showed that the same was served on all defendants, except Joseph Isaac, Sr.

The hearing, of which notice had been given, was held on the 2d day of July, 1930, and at such hearing the special commissioners made an award, fixing the market value of the land sought to be condemned at $3.50 per square foot, and the value of the buildings situated on the land to be condemned, taken, damaged or destroyed, at $5,000. The commissioners found that the remainder of defendants' land would not be damaged by reason of the taking of the land sought to be condemned. The sum total of the award made was $34,737.22. Such award was filed on the 9th day of July, 1930, and within due time defendant Ed. C. Isaac filed his exceptions to the award and appealed to the county court at law.

In the county court at law appellant answered by a plea to the jurisdiction of the court, a general demurrer, two special exceptions to the appellee's petition, and by general denial, and by way of cross-action he asked judgment against the city of Houston, alleging that on the ____ day of January, 1929, he had a bona fide offer for all of his tract of land, including that taken and the parts thereof not taken, consisting of 32,710 square feet, of $233,125; that such offer was conditioned upon the city of Houston granting appellant or purchaser a permit to construct on such land a building suitable to the purchaser; that the city willfully, wrongfully, and without just cause refused to issue the requested permit, and as a result of such refusal appellant was unable to sell the land, to his damage in the sum of $75,000.

By supplemental petition the city excepted specially to so much of appellant's answer as described certain two strips of land not described in the city's petition and which the city was not seeking to condemn, and to so much thereof as related to the offer appellant had received for his entire tract of land. Such special exceptions were sustained by the court.

In deference to the order of the court sustaining the city's exceptions and overruling appellant's exceptions, appellant filed his third amended answer from which he omitted the allegations in his former answer, which were stricken out upon the exceptions of the city. In that answer, upon which he went to trial, appellant made general demurrer, general denial, and specially pleaded a special law passed by the 33d Legislature (Sp. Acts 1913, c. 17) conferring upon the commissioners' court of Harris county authority to institute condemnation proceedings against persons for the condemnation of lands for public roads and streets.

Defendant John Ross filed his answer, in which he alleged that Ed. C. Isaac was indebted to him in an amount named, together with attorney's fees, etc., which were secured by a lien on the property of Ed. C. Isaac, a part of which the city of Houston was seeking to condemn.

Answer was filed by none of the other defendants.

The court submitted to a jury chosen to try the case the following special issue: "What was the market value on August 21st, 1930, of defendant's 8496.35 sq. ft. of land described in plaintiff's petition?" To such question the jury answered, $21,240.88, and in answer to another question they found that the taking of that portion of appellant's land for street widening purposes would increase the value of appellant's remaining land.

Upon the findings of the jury and the evidence, judgment was rendered for the city of Houston, decreeing that the city recover from Ed. C. Isaac, John Ross, Louis Hoop and Charles Hoop, and the representatives of the estate of Joseph Isaac, Sr., the title to and right of possession of the land sought to be condemned, and that Ed. C. Isaac, and the representatives of the estate of Joseph Isaac, Sr., do have and recover of and against the city of Houston the sum of $21,240.88; such judgment further decreeing that the compensation awarded Ed. C. Isaac be paid into the registry of the court, and that the defendants John Ross, Louis Hoop, and Charles Hoop should have and hold a lien against said award, or so much thereof as may be necessary, in lieu of their liens upon the land condemned.

From such judgment Ed. C. Isaac alone has appealed.

By appellant's second, third, fourth, and fifth propositions, contention is made that the right of the city of Houston to exercise the power of eminent domain rested entirely upon statutory authority and that the compliance with the statutory requirements is mandatory and necessary to confer jurisdiction upon the county court; that the city of Houston being only authorized to act in condemnation proceedings by and through its city council, and said council by express provisions of the city charter being only authorized to act by and through ordinances, motions, and resolutions passed by said council, and as said city of Houston failed to show any bona fide offer made to appellant for the land sought to be condemned authorized by motion, resolution, or ordinance of the city council authorizing any city official to purchase or offer to purchase said land, the city wholly failed to show that the trial court had jurisdiction to hear and determine this cause; that jurisdictional facts must always be affirmatively proven by the condemnor; and that since such jurisdictional facts were not shown by any probative evidence, the court erred in not dismissing the cause upon the close of the evidence, upon the motion of appellant for such dismissal.

Unquestionably the county court acquired jurisdiction of the condemnation proceedings on the plaintiff's allegation that the parties were unable to agree upon damages. Rabb v. LaFeria Canal Co., 62 Tex. Civ. App. 24, 130 S. W. 916. But after a careful examination of the statement of facts we have been unable to find any probative evidence showing that the parties were unable to agree on damages. In the absence of such proof, the court was without authority to render a judgment for the plaintiff condemning the property sought to be condemned. We therefore hold that the court erred in rendering judgment for the city of Houston condemning the land sought to be condemned.

The city of Houston, in its effort to prove that the city council had made an offer to appellant for the land sought to be condemned and thereby reach an agreement as to damages, offered in evidence the testimony of D. Barker, one of the city commissioners. He testified that he (Barker) offered appellant $3.50 a square foot for the land sought to be taken two or three times and that Isaac refused the offer, stating that he wanted to sell the whole tract; that he (Barker) told appellant that he did not think the council would buy the whole tract, but that he would submit appellant's proposal to sell the whole tract to the council. Testifying further, he said in substance that any offer he made for the land would not be binding on the city unless confirmed by the city council, but that the city council had agreed on a price (such price not being stated). Nowhere does he state that he had any authority to make an agreement with appellant for the purchase of the land sought to be condemned or any other land, nor does he state that he ever offered appellant any named price for the land owned by appellant.

No ordinance, resolution or motion passed by the city council authorizing Barker to make appellant an offer for the property sought to be condemned, or to make an effort to reach an agreement with appellant as to the value of said property, was shown. Barker's testimony was all the evidence offered for the purpose of showing that the city council had made any offer to appellant for his land which had been refused.

By subdivision 1 of article 3264, Revised Civil Statutes 1925, it is...