Malone v. City of Madisonville

• Decision Date: 19 December 1929
• Docket Number: (No. 868.)
• Citation: 24 S.W.2d 483
• Parties: MALONE et al. v. CITY OF MADISONVILLE.
• Court: Texas Court of Appeals

24 S.W.2d 483

MALONE et al. v. CITY OF MADISONVILLE.

(No. 868.)

Court of Civil Appeals of Texas. Waco.

December 19, 1929.

Rehearing Denied January 30, 1930.

Appeal from Madison County Court; W. L. Robinson, Judge.

Condemnation suit by the City of Madisonville against W. R. Malone and another. Judgment for plaintiff, and defendants appeal. Affirmed.

M. L. Bennett, of Normangee, and A. H. Menefee, of Madisonville, for appellants.

J. M. Brownlee and Joe E. Webb, both of Madisonville, for appellee.

STANFORD, J.

This suit was filed by appellee, a municipal corporation, against appellants, for the condemnation of certain lands, situated within the corporate limits of said city, for street and state highway purposes. After certain initial steps had been taken by appellee, it instituted suit in the county court of Madison county to condemn said property for the purposes aforesaid. In response to special issues submitted to them, the jury found:

(1) The city of Madisonville did fail to agree with the owners of the land, W. R. and Miss Loula Malone, on the amount of damages for the land sought to be condemned.

(2) The actual value of the land of the owners W. R. and Miss Loula Malone, condemned and taken as of date October 18, 1928, was $400.

(3) The owners of said land, W. R. and Miss Loula Malone, were not damaged because of the condemnation, to the remaining portion of said land of which that condemned is a part.

On these findings and such findings as the court was authorized by the pleadings and evidence to make, the court entered its judgment of condemnation, awarding appellants $400 for the land condemned. From this judgment appellants have duly appealed.

Under their first proposition, appellants contend, in effect, that the trial court erred in refusing to instruct a verdict for appellants, upon the ground there was no evidence that appellee had made any effort to agree with appellants on the value of the land condemned before instituting this suit. It is true, as contended by appellants, that, in order to show jurisdiction in the county court to condemn land for public use, it must be alleged that, before the filing of the statement in writing with the county judge of the county in which the land is situated, the party desiring to condemn had failed to agree with the owner of the land on the amount of damages, and on hearing in the county court said allegations must be sustained by evidence. Article 3264, Revised Statutes; Porter v. City of Abilene (Tex. Sup.) 16 S. W. 107; Coleman v. Archer County (Tex. Civ. App.) 16 S.W.(2d) 942; Parker v. Fort Worth & D. C. Ry. Co., 84 Tex. 333, 19 S. W. 518.

The record in this case shows that the city council of the city of Madisonville, on September 3, 1928, passed an order or ordinance appointing J. M. Brownlee and Joe E. Webb as attorneys for said city, and authorized said attorneys to take such steps as might be necessary to procure right of way for street and for state highway No. 32 being federal highway No. 72, on and along Price street in said city. The said Joe E. Webb, one of the attorneys so employed, was also one of the city aldermen. The record shows further: That Joe E. Webb, one of said attorneys employed, and also a city alderman, instructed S. S. Strayhan, a civil engineer and working as assistant to state highway engineer, to endeavor to procure, by agreement with W. R. and Loula Malone, the strip of land involved. The said Strayhan did take the matter up with W. R. Malone, and the said Malone proposed, if the city would buy for him another certain strip of land and grade up same and move his residence, etc., he would give the city the strip desired. The said Strayhan then tried to buy the strip requested by Malone, but could get only a part of it, and that Mr. Malone refused to accept said part. That W. R. Malone had made an alternative proposition that, if the city would buy him another certain piece of property, he would accept it in exchange for the strip desired, and that he (Strayhan) reported both propositions to the city council, and it would not agree to either. So the final outcome was a failure to make any settlement or agreement with Mr. Malone on the question of damages.

But appellants contend further that, if appellee did make an effort to agree with appellant W. R. Malone on the value of the land to be condemned, there was no such effort to agree with appellant Miss Loula Malone, and so the court should have directed a verdict in favor of both appellants. In its statement filed with the county judge, appellee alleged: "Your petitioner cannot and has failed to agree with said defendants upon the value of such land or damages." The record shows that W. R. Malone and Miss Loula Malone are brother and sister; that they owned jointly, in equal interests, the property a part of which was condemned; that they lived together on said property; that W. R. Malone usually represented his sister in their joint business matters. In appellee's efforts to agree with W. R. Malone on the amount of damages, he (W. R. Malone) did represent the entire interest in the land condemned.

W. R. Malone testified: "I told her (his sister) I would file her claim for her with the special commissioners, and I did so."

Miss Loula Malone testified: "Yes, I was cited by the special commissioners of condemnation and notified of the time and place of hearing, but did not appear because my brother W. R. Malone told me that he would put in a damage...