Luby v. City of Dallas, 16577

• Decision Date: 24 September 1965
• Docket Number: No. 16577,16577
• Parties: Earl E. LUBY et al., Appellants, v. The CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 192

396 S.W.2d 192

Earl E. LUBY et al., Appellants, v. The CITY OF DALLAS, Appellee.

No. 16577.

Court of Civil Appeals of Texas, Dallas.

Sept. 24, 1965.

Rehearing Denied Nov. 19, 1965.

William S. Campbell, Dallas, for appellants.

N. Alex Bickley, City Atty., and Kenneth C. Dippel, Asst. City Atty., Dallas, for appellee.

BATEMAN, Justice.

The City of Dallas, having previously purchased the fee simple title to certain real property needed in connection with the improvement of Griffin Street in downtown Dallas, took by these condemnation proceedings the leasehold interest of appellants in the property. Appellants occupied the property under a lease which would by its terms expire approximately 33 months after the date of taking, paying $700 per month rent. The special commissioners awarded appellants $40,000, which was paid into court by the City and then withdrawn by appellants, pursuant to Vernon's Ann.Civ.St., Art. 3268, prior to the trial in the county court. Both sides appealed from the award by filing objections thereto. The jury found the value of the leasehold to be $23,100; whereupon the court awarded the City of Dallas the leasehold interest in the land and judgment against appellants for $16,900, the difference between the $40,000 received by them and the $23,100 verdict. We affirm. The appellants' 36 points of error are so interwoven that we shall discuss the contentions raised by them rather than each of the points of error separately.

A great many of the points challenge the regularity of the condemnation proceedings occurring prior to the withdrawal of the $40,000 by the appellants. Several of them attack the Statement in Condemnation filed by the City because of the insufficiency of the description of the land being condemned, the failure of the City to state properly the names of the known owners of interests therein or the purpose for which the land will be used, concerning which there was a discrepancy between the Statement and the resolutions of the City Council; the failure to include in the proceedings certain necessary parties; and the failure of the Statement to contain all the information required by Art. 3264, § 1, V.A.C.S.

(1) The appellants, by their withdrawal of the $40,000 paid into the registry of the court by the City, must be held as a matter of law to have impliedly consented to the taking of their property. Only the question of adequate compensation remained to be determined. This has been the rule uniformly announced by our courts since City of San Antonio v. Grandjean (1897), 91 Tex. 430, 41 S.W. 477, 44 S.W. 476; the latest expression of our Supreme Court on the subject being in State of Texas v. Jackson, Tex.1965, 388 S.W.2d 924. In a footnote to that opinion is cited the opinion of this court in Crockett v. Housing Authority of City of Dallas, Tex.Civ.App., 274 S.W.2d 187, no wr. hist.

The foregoing rule is binding on appellants notwithstanding the fact that they sought to condition their withdrawal of the $40,000 by a recitation that the withdrawal was without prejudice to certain objections and exceptions. Having withdrawn the money deposited, appellants are precluded from contesting the legality of the proceedings establishing the City's right to take the property.

Appellants attack in various ways the legality of the condemnation proceedings and seek a reversal of the judgment because the City purchased from the fee owner, and took from appellants, more land than was necessary for the declared purpose of extending Griffin Street and sold the unneeded surplus to a private corporation. We see no merit in these points. In the first place, the appellants must be held to have waived any irregularity in this respect by their withdrawal of the $40,000. City of San Antonio v. Grandjean, supra, and State of Texas v. Jackson, supra. Morover, in the second place, an examination of the facts and the applicable authorities will demonstrate that there was nothing illegal or wrongful in the transactions in question.

(2) Appellants say that the court erred in even trying the case and submitting it to the jury because of this variance between the resolutions of the City Council, which authorized the appropriation of appellants' leasehold estate for the purpose of 'extending' Griffin Street, and the Statement in Condemnation, which states that such estate is to be condemned for the purposes of 'the widening and improvement of public streets and more particularly the extension of Griffin Street.' Appellants concede that the statutes and appellee's charter authorize the appropriation of privately owned property 'in order to open, widen, narrow, straighten or extend any public street, avenue or alley within the City limits,' but argue that when the City Council (the governing body of the City) declared a public necessity for the mere 'extension' of Griffin Street that meant continuing the existing street in a straight line and with the same width, and that there existed no authority, and no declaration by the Council of a public necessity, for the taking of appellants' property for the purpose of widening or changing the course of that street. We see no merit in this contention. The appellants were adequately informed by the Statement in Condemnation that the City was seeking to take all of their leasehold interest in the entire tract for the purpose of extending, improving and widening Griffin Street. Appellants appeared at the commissioners' hearing, objected to the award made by them, not on the grounds here under discussion, but on other matters touching only upon the value of the leasehold; withdrew the deposit of the award and sought to obtain a larger award by the jury. They amended their objections and exceptions to the award twice, and in the last amendment, which was filed March 16, 1964, and which must be held to have supplanted and previous objections and exceptions under Rule 65, Vernon's Texas R.C.P., the only objection made was that the award of the commissioners was inadequate. We therefore hold that appellants waived their right, if any they had, to complain of this matter of variance by not pleading it.

It is true that when the City filed its motion for a partial summary judgment under Rule 166-A, T.R.C.P., wherein it sought adjudication of its power, right and authority to condemn appellants' property and to limit the controversy to the proper amount to be paid to appellants, the latter, in a 'Controverting Affidavit' hinted broadly at the matter by suggesting that there were material fact issues on the question of whether the City had properly exercised its power to condemn. The transcript also contains a motion by appellants to dismiss the City's appeal from the commissioners' award, in which the question was squarely raised, but there is nothing in the transcript to show that this motion was called to the attention of the court. Therefore, it is our holding, based upon our examination of the record as a whole, that (1) the point was never actually presented to the trial court for a ruling and cannot now be raised for the first time on appeal, and (2) the point is, under all the circumstances of this case, without substance.

We think the trial court was correct in granting the partial summary judgment. The 'Controverting Affidavit' of appellants' attorney, mentioned above, raises no actual fact issues. Its eight pages are devoted primarily to complaint that the City, in purchasing the fee without notice to appellants, probably adversely affected the market value of appellants' leasehold, and that the City, when it offered appellants $100 for their leasehold, did not negotiate with them in good faith. These were not controverted issues of fact; the facts were undisputed, and the legal consequences thereof were not raised by the pleadings.

(3) The tract was owned by one Kain and had a frontage of about 50 feet on Main Street. It was about 100 feet deep and contained about 5,000 square feet. The brick building on it, which was leased to appellants, and in which they operated a cafeteria, contained about 3,550 square feet on the ground floor. The west wall of this building was a common wall with the adjoining building. After using the part actually needed for the extension, widening and improvement of Griffin Street, only a small triangle containing about 1,560 square feet remained, which would be wholly unsuitable for the operation of a cafeteria. Moreover, the destruction of the building occupied by appellants would remove some of the support of the common wall and would necessitate certain repairs thereto. After razing the building and setting aside sufficient land for the extension and widening of the street, it used the surplus long enough to repair and strengthen the common wall, and then sold such surplus.

(4, 5) It is well settled that a city may under these circumstances condemn the quantity of land which its governing body in good faith decides should be condemned for a certain purpose, and that in the absence of some constitutional or statutory limitation 'the discretion of the condemnor is absolute as to what land it may condemn for its purposes, and the courts will not review its discretion in this respect, except where it is made to appear the condemnor has acted in bad faith, or has acted arbitrarily, capriciously, or fraudulently, in selecting the particular land for its purpose.' Texas Electric Service v. Lineberry, Tex.Civ.App., 327 S.W.2d 657, 664, wr. dism. See also Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053, holding that 'a determination by the condemner of the necessity for acquiring certain property is conclusive in the absence of fraud.' The right of eminent domain exercised here is one delegated to the city by the legislature, and its exercise is a legislative, not a judicial, function. 'Those questions rest wholly within the legislative discretion.' West v....