Johnston v. Galveston County

• Decision Date: 19 January 1905
• Citation: 85 S.W. 511
• Parties: JOHNSTON v. GALVESTON COUNTY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 511

JOHNSTON v. GALVESTON COUNTY.^*

Court of Civil Appeals of Texas.

January 19, 1905.

Appeal from Galveston County Court; Lewis Fisher, Judge.

Proceedings by the county of Galveston for the condemnation of property owned by John A. Johnston. From a judgment of the county court condemning the land and awarding John A. Johnston damages, he appeals. Affirmed.

L. E. Trezevant and Robt. M. Franklin, for appellant. Davidson & Lovenberg, Kleberg & Neethe, and Jno. T. Wheeler, for appellee.

PLEASANTS, J.

This suit arose out of a condemnation proceeding instituted by appellee to condemn lands belonging to appellant for the purpose of constructing thereon the Galveston sea wall or breakwater. The petition upon which the condemnation proceedings were based was filed with the county judge of Galveston county on December 17, 1903, and contains the following allegations:

"The State of Texas, County of Galveston. To the Honorable County Judge of Galveston, Texas: Your petitioner, the county of Galveston, a body corporate and politic, created and existing under the laws of Texas, complaining of John A. Johnston, who resides in the county of Galveston, state of Texas, hereinafter styled defendant, respectfully represents: That your petitioner is a county bordering on the coast of the Gulf of Mexico, and is availing itself of the provisions of the act of the Twenty-Seventh Legislature of the state of Texas, passed at the first called session, and approved on September 7, 1901, authorizing all counties and cities bordering on the Gulf of Mexico to construct sea walls and breakwaters. That petitioner is authorized and empowered by said act to establish, locate, construct, maintain, and keep in repair sea walls and breakwaters, and to take and appropriate such land and other property as may be deemed necessary for the establishment, location, construction and maintenance of said sea walls and breakwaters; to define the area of land needed; and to acquire, take, hold, and enjoy the same for the purposes aforesaid; and, to that end, your petitioner is also authorized and empowered to exercise the right of eminent domain, and to condemn lands for the uses and purposes aforesaid, in the manner and under the conditions provided by the general laws of said state in case of railroad corporations: provided, nevertheless, that, whenever deemed necessary for the purpose of said act, petitioner is furthermore authorized and empowered to take the fee-simple estate to the land condemned or acquired under said act. That petitioner is now constructing a sea wall in said county of Galveston along the coast of the Gulf of Mexico, and has, by order of its commissioners' court passed on August 23, 1902, duly entered on the minutes of said county commissioners' court, defined and described the lands needed, and determined whether an easement or fee simple estate in said lands should be taken, and adopted a map, copy whereof is of record in volume 194, on pages 1, 2, 3, and 4, of the deed records of Galveston county, Texas, to which reference is hereby made, upon which the lands to be taken are delineated, and included within which is the following described land, owned by said defendant, the fee-simple estate in which was by the aforesaid order determined to be taken, to wit: All that part of that certain tract or parcel of land lying and situated in the city and county of Galveston, state of Texas, known and described as lot number nine (9) in the southeast block of outlot number twenty-three (23) according to the map or plan or said city of Galveston in common use, and the subdivision of said outlot 23 into four blocks, of fourteen lots each, corresponding in shape and size with the blocks and lots north of Avenue M, and east of Twenty-Ninth street, in said city of Galveston, described as follows: [The metes and bounds are here given fully and accurately.] Your petitioner further represents that it is necessary for the establishment, location, construction, and maintenance of said sea wall that petitioner acquire, take, hold, and enjoy the fee-simple estate in and to the above-described land owned as aforesaid by said defendant, and that your petitioner cannot agree with said defendant for the purchase of said land. Wherefore petitioner prays for the appointment of special commissioners to assess the damages occasioned by the acquisition of said land by petitioner, and for decree of condemnation vesting in petitioner the fee-simple estate in said land, for costs of suit, and for such other and further relief, both general and special, as petitioner may be entitled to under the law. And it will ever pray," etc.

Upon the filing of this petition, service of citation thereon having been accepted by appellant, the county judge appointed I. Lovenberg, M. W. Shaw, and George Robinson, who were disinterested freeholders of said county, commissioners to assess the damages which appellant would suffer by the condemnation of his land. These commissioners qualified on January 19, 1904, and thereafter proceeded in the manner prescribed by the statute to ascertain and assess appellant's damage, which they found to be $75. The report of the commissioners was promptly made, and was filed on January 26, 1904. Within 10 days after the filing of the report, the appellant filed his opposition and exceptions thereto. The cause was then placed upon the docket of the county court of Galveston county, and thereafter proceeded to a trial, which resulted in a judgment in favor of appellee, condemning the land, and awarding appellant damages in the sum of $150.

Appellant assails the judgment upon the ground that the petition for condemnation does not state facts sufficient to give the county judge of Galveston county power or jurisdiction to appoint commissioners to assess the damages to which appellant was entitled, and therefore said order of appointment, the action of the commissioners, and all subsequent proceedings thereunder, are coram non judice, illegal, and void. The exceptions to the petition are thus stated in appellant's brief:

"First. It does not set forth any facts from which it is made to appear that the county of Galveston is, as alleged, availing itself of the laws of this state authorizing it to construct a sea wall, and to take the property of this defendant for such purpose, under the power of eminent domain; and it does not set forth any facts from which it is made to appear that the county of Galveston has availed itself of the Constitution and laws of this state authorizing it to construct a sea wall, and to take the property of this defendant for such purpose, under the power of eminent domain.

"Second. Said petition does not set forth the conditions prescribed by the Constitution and laws of this state, under and by authority of which, as preliminaries and conditions precedent, the county of Galveston is authorized to exercise the right of eminent domain for the construction of a sea wall, and it does not appear from any facts set forth in said petition that the county of Galveston is authorized by law to take and appropriate the land of this defendant for the construction of a sea wall; and this because said petition does not allege as conditions precedent to the construction of a sea wall, and to the incurring of any indebtedness therefor, the county of Galveston has provided for and held an election of the qualified voters of said county to determine whether or not a tax should be levied by said county for the payment of bonds, and interest thereon, to be issued by said county for the construction of a sea wall, and said petition does not allege that, at an election provided for and held in said county for said purpose, two-thirds of the taxpayers, who are qualified voters, voted in favor of a tax to be levied for the payment of bonds to be issued for the construction of a sea wall."

The cause was tried in the court below upon an amended petition filed after appellant's exceptions to the original petition. This amended petition contains full and specific allegations showing that an election had been held, in accordance with the terms of the statute, to determine whether the county of Galveston should levy a tax for the payment of bonds to be issued for the construction of a seawall, and that said election had resulted in favor of the tax.

The jurisdiction of the county court in suits of this character, while not eo nomine appellate, is such in effect. The proceeding cannot be begun in the county court, but must be commenced by a petition to the county judge stating facts which show that the petitioner is entitled to condemn the property. When such a petition is presented to the county judge, he has power or jurisdiction to appoint a special tribunal, composed of three disinterested freeholders of the county, which tribunal acts judicially in determining the question of the amount of damages to which the defendant is entitled by reason of the condemnation or taking of his property for public use. It is only when one or the other of the parties to the proceeding is dissatisfied with the award or judgment of the special tribunal, or when the defendant wishes to contest the right of the plaintiff to condemn his property, that the county court acquires jurisdiction to try the issues involved in the proceedings. We think it beyond question that the jurisdiction of the county court in these proceedings is appellate, contradistinguished from original or concurrent jurisdiction. It follows that, unless the original petition states facts sufficient to authorize the county judge to appoint the commissioners, his action in making such appointment was void, and the tribunal thus created was without jurisdiction to assess the damages to appellant. There being no jurisdiction in the court a qua, the appellate court could acquire none, and no amendment of the petition in the county court could avail appellee to cure the omission of...