Mann v. Trinity Farm Co.

• Decision Date: 14 March 1925
• Docket Number: (No. 9210.)
• Citation: 270 S.W. 923
• Parties: MANN et al. v. TRINITY FARM CO. et al.
• Court: Texas Court of Appeals

270 S.W. 923

MANN et al. v. TRINITY FARM CO. et al.

(No. 9210.)

Court of Civil Appeals of Texas. Dallas.

March 14, 1925.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Petition for injunction by Mrs. Lenis F. Mann and another against the Trinity Farm Company and others, in which a temporary injunction was granted. From judgment dissolving temporary injunction and dismissing case, plaintiffs appeal. Reversed and remanded, with directions.

Wirt Mann and J. E. Gilbert, both of Dallas, for appellants.

J. Lee Gammon, of Waxahachie, and A. S. Jackson, of Dallas, for appellees.

VAUGHAN, J.

On the 18th day of April, 1922, appellants, Mrs. Lenis F. Mann and her husband, Wirt F. Mann, filed their petition for an injunction, duly verified, against Trinity Farm Company, an incorporated joint-stock association, C. H. Clark, H. B. Greever, E. P. Harwell, T. H. Harbin, J. F. Ross, J. B. Alred, and C. R. Brown, as defendants therein, who, now, with Dallas levee improvement district No. 5, are the appellees in this cause.

Appellants, in their original petition, allege ownership, possession, and occupancy as a homestead of 160 acres of land under inclosure and in cultivation, and described by metes and bounds; that the parties defendant therein named were threatening to tear down appellants' fences, enter upon and construct across their homestead premises a deep ditch, destroying their growing crops, and disturb their peaceable possession, whereby irreparable damages would be done them, and that they were remedies unless by injunction; that appellants were married on the 14th day of February, 1908, and have since lived together as man and wife, making the land above mentioned their homestead; and that they have never moved therefrom nor acquired any other homestead. The prayer is for injunction and restraining order to prevent said defendants from committing any act of trespass thereon, and on final hearing for injunction, general relief, etc.

On April 21, 1922, after due notice, said petition was heard and a temporary restraining order granted restraining said defendants from doing the things therein alleged defendants were threatening to do to the prejudice of appellants' rights.

Trinity Farm Company filed its original answer on May 24, 1922, which, in effect, is a plea in confession and avoidance, with prayer for abatement and dissolution of the temporary restraining order, alleging that it was a contractor only of Dallas county levee improvement district No. 5, and, as an employee under such contract, had moved its machinery and equipment, engines, teams, and laborers upon the ground at the date of the suing out of the injunction and service thereof, for the sole purpose of constructing the improvements upon the lands mentioned in appellants' petition, and alleged to be described in a petition of said levee improvement district No. 5 filed before the judge of the county court at law seeking to condemn the right of way over the lands of appellants; that condemnation hearing was had, at which appellants appeared, protested, and appealed from the award, which appeal is pending, a copy of which condemnation proceedings was, as alleged, attached to and referred to as "Exhibit A"; and further alleged that it was not threatening to do anything upon any land other than the lands described in said petition of said improvement district. It does not traverse or deny any allegation of the original bill, except by way of confession and avoidance. Exhibit A, attached to said answer, is an alleged copy of the petition to the county judge of Dallas county at law for the appointment of commissioners to condemn the strip of land through appellants' property, which petition is alleged to have described about 5,000 acres by metes and bounds, and includes 12 acres of appellants' land, which 12 acres form a strip of land approximately 148 by 3,620 feet, running diagonally from the northeast to the southwest corner across the 160 acres, which is square, each side being 950.4 varas; that in said condemnation petition it is alleged that said district had adopted plans for the improvement proposed, which have been approved by the reclamation engineer, said plans prescribing the construction of a hillside ditch upon appellants' land. The report of the condemnation commissioners was filed December 2, 1920, and awarded appellants $125 per acre for 12 acres, a total of $1,500, and allowed no other damages. It is further alleged that said levee district paid the costs and deposited double the amount of the award and made the bond required for the payment of any additional costs.

On May 24, 1922, said levee improvement district intervened and adopted the answer of Trinity Farm Company, and alleged that the district court was without jurisdiction and that appellants had filed their opposition to the award of the condemnation commissioners, which was pending in the county court, which court alone had jurisdiction.

On June 16, 1922, appellants filed their first supplemental petition in reply to the original answer of the Trinity Farm Company, in which they denied all the allegations contained in said answer, and further denied that Dallas county levee improvement district No. 5 is a corporation; that in the petition filed to organize said levee improvement district no description was given of the lands composing same; that the notices issued on said petition by the clerk contained no description other than approximately 5,000 acres of land out of a number of surveys, naming them, including the Stockton survey, which is owned by appellants; that, while neither the petition nor the notice issued thereon gave a description by metes and bounds of the proposed district, "at the instigation of defendants, the court made an order establishing the district to embrace the land described in said order."

Appellants further allege that the taking of their property is intended for private use and benefit of said levee improvement district, and for no other purpose; that said district has assumed no duty to the public, owes no duty thereto, and has performed none, and does not undertake to perform any which require the taking of appellants' property for such pretended use; that appellants' land is separated from that of said levee improvement district by a line running east and west and a line running north and south; that no water runs over appellants' land to that of said levee improvement district, except such as passes from a higher to a lower level over a natural watershed; that appellees could construct a ditch on their own property, or on their south and west line, and arrest the natural flow of the water and carry it to any destination they desired: "and that it pretends that the invasion of plaintiffs' property by taking the portion of it which they have undertaken to condemn and appropriate is for a public use and is false;" that on the 30th day of November, 1920, appellee levee improvement district directed its employees, who were supervisors, to file a petition to condemn the land of appellants; that the purpose expressed in their petition is to construct a "hillside ditch" upon appellants' private property. They aver that the honorable county court of Dallas county is without authority to take and appropriate appellants' property for any such purpose.

The trial court, in its judgment rendered on appellee's motion to dissolve the temporary restraining order, held that it had no jurisdiction of the matter in controversy, that the remedy invoked by appellants could only be afforded at the instance of the Attorney General or the district attorney in a quo warranto proceeding for that purpose, dissolved the injunction, and dismissed the case. Bond for appeal and to continue the temporary injunction in force as granted pending appeal was fixed at $3,000; the judgment providing that upon its execution the restraining order should remain in effect until the hearing of the cause on appeal. Said bond was duly executed and appeal otherwise duly perfected to this court.

Notwithstanding the parties to the litigation were content to treat appellants' supplemental petitions as appropriate amendments to the original petition filed, we think it well, in order to prevent any erroneous conclusion as to the office of an amended or supplemental petition and the proper practice to be pursued in the trial of cases in reference thereto, to state that if proper and timely objections to said supplements being received and considered as amendments had been made, effect should only have been given to said pleadings as would, under the rules of practice, be accorded to supplemental petitions, and not the effect of, or considered, as amendments to the original petition. M. C. Glenn v. Dallas County Bois D'Arc Island Levee District, 268 S. W. 452, decided by Commission of Appeals January 28, 1925, not yet [officially] reported; Creosoted Wood Block Paving Co. v. McKay et al. (Tex. Civ. App.) 234 S. W. 587.

The material allegations contained in appellants' pleadings, not having been denied by appellees' answer, same being in the nature of a plea of confession and avoidance, will constitute, for the purpose of determining this appeal, the statement of facts, which will be taken as true just as if the trial court had sustained a general demurrer to appellants' pleadings on a hearing of the motion to dissolve. Doyle, County Judge, et al., v. Slaughter et al. (Tex. Civ. App.) 250 S. W. 1090.

Appellants have ordered their cause on this appeal and seek to justify their position by the following propositions: (a) That appellants' land is not subject to the condemnation proceedings instituted by appellee levee improvement district to acquire the long, narrow strip of land running diagonally across appellants' 160-acre homestead tract, which is not included in the district (except the 12 acres sought to be condemned), nor subject to overflow, and which was not...