McInnis v. Brown County Water Improvement Dist. No. 1

• Decision Date: 03 June 1931
• Docket Number: No. 7585.,7585.
• Citation: 41 S.W.2d 741
• Parties: McINNIS et al. v. BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1.
• Court: Texas Court of Appeals

41 S.W.2d 741

McINNIS et al. v. BROWN COUNTY WATER IMPROVEMENT DIST. NO. 1.

No. 7585.

Court of Civil Appeals of Texas. Austin.

June 3, 1931.

Supplemental Opinions, June 17 and 24, 1931.

Rehearing Denied June 24, 1931.

COPYRIGHT MATERIAL OMITTED

Appeal from Brown County Court; E. M. Davis, Judge.

Condemnation proceeding by Brown County Water Improvement District No. 1 against Misses Emma and Susan McInnis. From the judgment, defendants appeal.

Affirmed.

Wilkinson & Wilkinson, of Brownwood, and J. W. Stovall, of San Angelo, for appellants.

McCartney & McCartney, of Brownwood, and Critz & Woodward, of Coleman, for appellee.

McCLENDON, C. J.

Appeal in a condemnation proceeding in which judgment was rendered condemning the fee to a portion of appellants' land and an easement upon other portions.

Appellee, plaintiff below, is a water improvement district, created under the provisions of chapter 2 of title 128, R. S. of 1925 (article 7622 et seq.). Its general purpose was to construct a large reservoir by damming the waters of Pecan bayou, in order to provide a water supply for the city of Brownwood. This dam when constructed would permanently inundate a portion of appellants' lands bordering on the stream and some of its tributaries when the reservoir was filled to spillway level, and would in flood times temporarily inundate additional lands. A portion of appellants' lands would be entirely surrounded by the waters of the reservoir, thus creating a small island; and a small portion would be isolated from the main body. The proceeding sought and obtained condemnation of the fee to this land and permanently inundated portions of the lands, including the bed of Pecan bayou, and an overflow easement in the land temporarily inundated in flood seasons. Other details of the decree will be noted below.

Disqualification of the county judge and members of the board of commissioners is urged on account of the fact that they were taxpayers in the district.

As to the judge this contention is overruled on the authority of Hubbard v. Hamilton County, 113 Tex. 547, 261 S. W. 990; City of Oak Cliff v. State, 97 Tex. 391, 79 S. W. 1068; City of Dallas v. Peacock, 89 Tex. 58, 33 S. W. 220, distinguishing City of Austin v. Nalle, 85 Tex. 534, 22 S. W. 668, 960; City of Dallas v. Armour & Co. (Tex. Civ. App.) 216 S. W. 222 (error refused).

As to the commissioners we overrule the contention on the authority of Moore v. Dallas (Tex. Civ. App.) 200 S. W. 870, 871; Watson v. De Witt County, 19 Tex. Civ. App. 150, 46 S. W. 1061; City of Marshall v. McAllister, 18 Tex. Civ. App. 159, 43 S. W. 1043.

R. S. art. 7880 — 132 (a), as amended in 1929 (Acts 41st Leg. p. 578, c. 280, § 14), provides that if a member of the board "be personally interested, either directly, or indirectly * * * in a particular proposed assessment or other determination," he shall certify his disqualification. This language is substantially the same as that employed in article 2134, subd. 2, disqualifying jurors where "interested, directly or indirectly, in the subject matter of the suit." In Moore v. Dallas, above, in construing this language the court say: "It is not believed that the difference in the wording of the statute relating to the disqualification of judges and that relating to the disqualification of jurors materially affects the question." The interest of a taxpayer, in either case is too remote and contingent to disqualify.

Chapter 7, page 120, 5th Called Session of the 41st Legislature, 1930 (Vernon's Annotated Civ. Stat. art. 7807a), grants to water improvement districts the right "to acquire by condemnation lands, easements and other property and the fee simple title, easement or right-of-way in, over and through all lands, private and public, except as hereinafter indicated, necessary for making, constructing, maintaining, operating, policing and protecting dams, reservoirs, canals, laterals, pumping sites, drainage ditches, levees and all other improvements necessary and proper for such districts, including sites for construction and working purposes." Section 3 of the act (Vernon's Ann. Civ. St. art. 7807a, § 3) provides that "the assessing of damages and all procedure with reference to condemnation, appeal and payment, shall be in conformity with the Statutes as provided in Title 52 of the Revised Civil Statutes of the State of Texas relating to eminent domain," with certain provisos not pertinent to this appeal.

In the oral argument and by supplemental brief appellants for the first time raise the issue that the act in question is unconstitutional in so far as it attempts to confer jurisdiction on the county court to condemn the fee to land as being in conflict with sections 8 and 16 of article 5 of the Constitution, the former of which confers jurisdiction on districts courts "of all suits for trial of title to land," and the latter excludes from county courts' jurisdiction all suits "for the recovery of land."

We overrule this contention on two grounds.

1. A condemnation proceeding is not a suit within the meaning of the invoked constitutional provisions. It is not a trial of the title to land nor does it involve the recovery of land. Unless title in the condemnee is admitted the county court is without jurisdiction. This, we think, clearly follows from the holdings in Buffalo Bayou, B. & C. Ry. Co. v. Ferris, 26 Tex. 588, and San Antonio v. Grandjean, 91 Tex. 432, 41 S. W. 477, 44 S. W. 476, from the former of which we quote (Justice Moore writing): "The constitutional provision that the `right of trial by jury shall remain inviolate,' does not apply to the case of taking private property for public use, but to suits in courts of justice; to some known and fixed mode of judicial proceeding, for the trial of issues of fact in civil and criminal causes in courts of justice." This language is peculiarly apt to the invoked jurisdictional provisions of the constitution.

2. It was held in Gulf, C. & S. F. Ry. Co. v. Tacquard, 3 Willson, Civ. Cas. Ct. App. § 141, that the statute conferring jurisdiction on county courts in condemnation proceedings was authorized by section 22 of article 5 of the Constitution, empowering the Legislature "by local or general law, to increase, diminish or change the civil and criminal jurisdiction of County Courts." This decision has had express approval of the Supreme Court in Southern Kansas Ry. Co. v. Vance, 104 Tex. 90, 133 S. W. 1043, and Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.(2d) 266, 271.

This jurisdiction has been exercised by the county court from the earliest times, and whenever questioned its constitutionality has always been upheld. Its validity is not an open question.

We do not think there is merit in appellants' further contention that the Legislature has not conferred upon the county court jurisdiction to condemn the fee because article 7807a, § 3, confers jurisdiction by reference to title 52, R. S., which specifically excludes any procedure with reference to the acquisition of the fee-simple title. Article 3270 of that title provides: "Except where otherwise expressly provided by law, the right secured or to be secured to any corporation or other plaintiff in this State, in the manner provided by this law, shall not be so construed as to include the fee simple estate in lands, either public or private." This language clearly contemplates condemnation of the fee by the procedure in this title, where, as in the instant case, it is "expressly provided by law."

By their first proposition appellants assert generally the unconstitutionality of the act in so far as it authorizes condemnation of the fee.

It is not entirely clear from the brief whether they contend that such power could not be granted by the Legislature in any case.

Eminent domain, or the power to take private property for public use, is an inherent and inalienable attribute of sovereignty. Its delegation to the Legislature is implied from the general grant of legislative power; requires no express authority; and constitutional provisions touching it are generally regarded as limitations upon the legislative authority. See 20 C. J. p. 513, § 1; 10 R. C. L. p. 11, § 9; Lewis on Eminent Domain (3d Ed.) vol. 1, pp. 20, 21, §§ 9 and 10.

This power extends to every species of property and every character of right, title, or interest therein, including the fee to realty. Authority upon this subject is abundant and uniform. 20 C. J. p. 1221, § 582; Lewis on Eminent Domain (3d Ed.) vol. II, p. 743, § 411.

Although there have been in this state a number of legislative acts authorizing condemning the fee, their constitutionality in this regard appears never to have been brought in question. The first of these acts was that passed in 1901 under which the Galveston sea wall was constructed (chapter 12, p. 23, General Laws 1st Called Session 27th Leg., 1901). Section 3 of that act empowered the county commissioners and city authorities "to take the fee simple estate to the land condemned or acquired hereunder, whenever deemed necessary for the purposes of this act." Proceedings under the act were upheld in Johnston v. Galveston County (Tex. Civ. App.) 85 S. W. 511, but its constitutionality on the ground under discussion does not appear to have been raised.

Appellants' contentions, as we gather them from the brief and argument, may be reduced to two propositions:

1. The fee is not essential to the public uses for which the property is taken under the statute, in that an easement would be sufficient to all such uses, and therefore condemnation of the fee amounts to a taking of private property, not for public, but for private use, and violates the last clause of article 1, § 17, of the Constitution (Bill of Rights) reading: "All privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof."

2. The discretion which the act vests in the district to...