Lower Nueces River Water Supply Dist. v. Cartwright

• Decision Date: 11 November 1959
• Docket Number: No. A-7153,A-7153
• Citation: 328 S.W.2d 752,160 Tex. 239
• Parties: LOWER NUECES RIVER WATER SUPPLY DISTRICT, Petitioner, v. Holman CARTWRIGHT et ux., Respondents.
• Court: Texas Supreme Court

Page 752

328 S.W.2d 752

160 Tex. 239

LOWER NUECES RIVER WATER SUPPLY DISTRICT, Petitioner, v. Holman CARTWRIGHT et ux., Respondents.

No. A-7153.

Supreme Court of Texas.

Nov. 11, 1959.

Schneider & Schneider, Charles C. Triplett, George West, Lewright, Dyer & Redford, Fischer, Wood, Burney & Nesbitt, Corpus Christi, for petitioner.

William L. Hardwick, George West, Morrill & Patton, Beeville, Harry J. Schulz, Three Rivers Clemens, Knight, Weiss & Spencer, San Antonio, for respondents.

NORVELL, Justice.

The controlling question in this case is whether a condemning authority in an eminent domain proceeding may, prior to an award, properly dismiss proceedings pending before the special commissioners in condemnation and file suit in the District Court seeking both a determination of title disputes which had arisen in the proceedings before the commissioners, and the fixing of compensation for such property as was being taken by the condemning authority under the power of eminent domain.

The Court of Civil Appeals was of the opinion that title questions were involved in this litigation; that these should be determined by the District Court, and that thereafter the special commissioners should fix the damages occasioned by the taking of the lands or interests therein which had not been theretofore acquired by the District. 319 S.W.2d 158.

While agreeing with the Court of Civil Appeals in its factual analysis of the case, we are of the opinion that the 'point of no return' had not been reached in the proceedings before the special commissioners because no award had been made and hence this case is distinguishable from Brazos River Conservation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, wherein it appeared that an award and deposit in accordance therewith had been made and possession of the premises thus secured by the condemning authority. We refer to the steps taken before the county judge and the special commissioners as the administrative proceedings because they are in no sense judicial. The nature and characteristics of such proceedings were recently considered and discussed by this Court in Pearson v. State, Tex.Sup., 315 S.W.2d 935.

It appears that possession of lands belonging to the Cartwright respondents was not obtained by the Water Supply District under an award, or by virtue of an agreement operating in much the same way as an award, which was made or executed in connection with the administrative proceedings. It follows then, in view of the title issue involved, the Water Supply District was entitled to bring suit in the District Court and have that court determine not only the question of title but also the amount of compensation to be paid to the Cartwrights for lands and rights in land owned by them and taken by the condemning authority. Article 3269, Vernon's Ann.Tex.Stats.

Accordingly that portion of the Court of Civil Appeals' judgment which reversed the District Court's dismissal of the Water Supply District action in the District Court (upon the sustaining of a plea in abatement) is affirmed. That part of the Court of Civil Appeals' judgment affirming the denial of an ancillary temporary injunction against respondents is reversed and said parties are here now restrained from taking further action in the administrative proceedings pending final disposition of the cause now pending in the District Court. This temporary injunction, being a pendente lite order, is subject to modification by the District Court provided such action be consistent with this opinion which will govern the trial of this cause in the District Court.

A discussion of the case involves both the grounds upon which the Court of Civil Appeals based it decision and certain additional or supplementary arguments advanced by the respondents in this Court. These two theses are not consistent in all respects. For instance, the Court of Civil Appeals was of the opinion there was a title dispute extending beyond a certain 302.28-acre tract involved as is apparent from the following excerpt from that Court's opinion (319 S.W.2d 160):

'Cartwrights claim that they removed the title issue from the condemnation suit because they filed a disclaimer, but the disclaimer is not as broad as the claim, and title issues still remain. There still exists, even with the disclaimer, a dispute over the rights of Water District as to the duration of the easement on lands between the line described in the disclaimer as 'now' below the seventyfive foot contour level, and the land as actually described by metes and bounds in Water District's easement. The disclaimer is silent about disclaiming as to Water District's right to flood intermittently an additional 2,147.82 acres of land between the seventy-five and eighty-five foot level. There are other disputes. In any event, a disclaimer does not entitle one to a dismissal, but entitles the claimant to a judgment upon the disclaimer.'

Respondents, on the other hand, insist that there was no title dispute and that petitioner is precluded from raising a title issue.

The frame of a case in this Court is determined by the points contained in the application or applications for writs of error. A party who files no application may not obtain a reversal or modification of a judgment of a Court of Civil Appeals, although he may urge a different ground for an affirmance than that set forth in the opinion of the Court of Civil Appeals. Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785.

The respondent filed no application for writ of error and submitted no prayer for modification or reversal of the judgment of the Court of Civil Appeals. They stand before this Court simply asking that such judgment be affirmed although they do, by way of argument, suggest grounds for affirmance different from those selected by the Court of Civil Appeals.

Any modification of the Court of Civil Appeals' judgment must be predicated upon points of error contained in the Water Supply District's application for writ of error; it being the only application filed in the case. The District does not complain of the Court of Civil Appeals' action reversing the order of dismissal entered by the District Court. Hence the order of the Court of Civil Appeals which, in effect, reinstates the case upon the District Court's docket, cannot be modified or reversed by us. And this circumstance should be kept in mind in connection with the following discussion. The effective points raised by petitioner relate to the action that is to be taken by the District Court upon the trial of the case, that is, shall the District Court proceed to determine compensation issues as well as title issues or shall it determine the title issues and then notify the commissioners of this action and allow them to proceed from this point?

The statement of the Court of Civil Appeals is entirely adequate for a determination of this issue, but in view of contentions raised by respondents we will restate the basis of the controversy in more or less chronological order.

The lands which are the subject matter of this litigation lie in the valley of the Nueces River in the general shape of a bowl and include reservoirs holding water impounded by the construction of dams across the river. There are three strips or areas of land involved. One lies below the contour line of 75 feet above sea level. The second lies between the 75-foot and 85-foot contour lines. The third lies between

These strips came into being, so to speak,

These strips came into being, sot o speak, through an easement contract executed by respondents Holman Cartwright and his wife on December 23, 1927, plus the desire and plans of the petitioner, Lower Nueces River Water Supply District, to provide a greater water supply for the City of Corpus Christi and those residing along the lower reaches of the Nueces.

The Cartwright 1927 easement conveyed to the City of Corpus Christi the right to inundate and overflow certain lands for water storage purposes. It had reference to a reservoir formed by placing a dam across the Nueces which was a much smaller structure than the presently existing Wesley Seale Dam.

This easement gave the City the right to flood and permanently submerge a tract of 302.28 acres, together with the right to flood and overflow, during times of high water and flood, an additional 2,147.82 acres of land. Both tracts were described by metes and bounds and the line of 75 feet above sea level was referred to as bounding the 302.28-acre tract, while the 2,147.82-acre tract was described as lying between the 75-foot line and the line of 85 feet above sea level. From this instrument we get the 75 and 85 foot contour lines.

The duration of the easements was for 'a period of forty (40) years, from and after the date hereof (December 23, 1924), or during the time said easements, rights and privileges may be actively used by said City, its successors and assigns for said purposes; provided, however, that upon there being a cessation in the use thereof for a continuous period of three (3) years said easements, rights and privileges will cease to exist in the city and revert in full to grantors, their heirs, representatives and assigns.'

With the erection of the Wesley Seale Dam, a much larger and more extensive structure than the then existing dam, the Lower Nueces River Water Supply District, successor in interest to the City of covering some 3,242.92 acres of land covering some 3,242.92 acres of alnd owned by Cartwright for water storage purposes. This acreage lay between the 75 and 94 foot contour lines and included the 2,147.82 acres covered by the 1927 easement. Being unable to reach an agreement as to compensation for the proposed taking, the District on November 1, 1957, commenced condemnation proceedings and requested the County Judge of Live Oak County to appoint special commissioners in partition.

During the proceedings before the commissioners a dispute arose as to the...