National Ass'n v. Arroyo Colorado Nav. Dist.

• Decision Date: 13 October 1937
• Docket Number: No. 10096.,10096.
• Citation: 110 S.W.2d 150
• Parties: NATIONAL ASS'N OF AUDUBON SOCIETIES v. ARROYO COLORADO NAV. DIST. OF CAMERON AND WILLACY COUNTIES.
• Court: Texas Court of Appeals

110 S.W.2d 150

NATIONAL ASS'N OF AUDUBON SOCIETIES v. ARROYO COLORADO NAV. DIST. OF CAMERON AND WILLACY COUNTIES.

No. 10096.

Court of Civil Appeals of Texas. San Antonio.

October 13, 1937.

Rehearing Denied December 1, 1937.

Appeal from Cameron County Court; Bascom Cox, Judge.

Condemnation proceeding by the Arroyo Colorado Nav. District of Cameron and Willacy Counties, Tex., against the National Association of Audubon Societies, a New York corporation. From the judgment, defendant appeals.

Affirmed.

Abney & Whitelaw, of Brownsville, for appellant.

Lorimer Brown & Davis, of Harlingen, for appellee.

SLATTON, Justice.

This is a condemnation proceeding instituted by the Arroyo Colorado Navigation District of Cameron and Willacy Counties against the National Association of Audubon Societies, a New York corporation. The commissioners appointed by the judge of the county court at law of Cameron county allowed the relief asked by the navigation district and found that no damages would accrue to the society.

Numerous objections were filed by the society to the report of the commissioners, and upon trial before the county court at law the report of the commissioners was confirmed, except that the court allowed the society $1 as nominal damages and adjudged costs against the navigation district.

The society holds a lease for a term of fifty years from the commissioner of the General Land Office for the State of Texas, which was authorized by chapter 20, of the Acts of the First Called Session of the 37th Leg.(1921). The navigation district was granted the right to construct and maintain a channel 1,000 feet wide through the waters of the leasehold estate held by the society over the public domain of Texas. The society has appealed.

The society by its first three propositions asserts that the navigation district having ample authority under the law to procure the fee from the state of Texas to land sought to be condemned and failing to exercise such right, that as against it, the holder of a leasehold estate, the state is a necessary party in such condemnation proceedings, and that a petition failing to allege some right procured from the state, or failing to make the state a party, is subject to general demurrer. To these contentions we cannot agree. By article 8263, § 34, of the Revised Civil Statutes of Texas (Vernon's Ann.Civ.St. art. 8263h, § 34) the right of eminent domain is conferred upon all navigation districts. In such article the Legislature has delegated the authority to navigation districts to determine for themselves the necessity for the taking, and has lodged in such districts the discretion to determine what estate or interest in the required property shall be condemned. This authority is only limited by the statute itself, and, unless this discretion is palpably abused by the district, the courts will not intervene. Pecos & N. T. Ry. Co. v. Malone (Tex. Civ.App.) 190 S.W. 809; McInnis v. Brown County Water Imp. Dist., 41 S. W.2d 741.

Under the statute the discretion was lodged with the district to determine for itself whether it was necessary to obtain a fee-simple title to the right of way sought to be condemned or an easement over and through the leasehold estate held by the appellant.

By its fourth and fifth propositions the society urges that it was reversible error for the trial court to overrule its general demurrer, claiming, in effect, that there was an inconsistency, in that, as the district alleged that the defendant society claims some right, title, or interest in the land and waters described, the exact nature of the society's interest cannot be determined by the district, and further alleged that a leasehold interest in said land and waters is now owned by the defendant society. Article 3264 of the Revised Civil Statutes of 1925, as amended by Acts 1934, 2d Called Sess. c. 37, § 1 (Vernon's Ann.Civ.St. art. 3264) states the necessary allegations required in statutory condemnation proceedings.

In Lewis on Eminent Domain (3d Ed.) § 412, vol. 2, p. 743, it is said: "The term owner as used in condemnation statutes embraces not only the owner of the fee, but a tenant for life, a lessee for years, and any other person who has an interest in the property that will be affected by the condemnation."

Applying the well-established rules with reference to a pleading tested by general demurrer, we hold that the allegations of the petition were sufficient. Houston North Shore Ry. Co. v. Tyrrell (Tex.Sup.) 98 S. W.2d 786, 108 A.L.R. 1508, and authorities there cited.

The society next complains at the action of the county court at law in appointing the commissioners, claiming that the act creating the county court at law for Cameron county reserved the right and duty of appointment of commissioners in condemnation proceedings to the county judge of Cameron county. The jurisdiction of the county court at law of Cameron county is provided by article 1970-305, Vernon's Ann.Civ.St. We overrule the contention on the authority of Texas & N. O. Ry. Co. v. Beaumont (Tex.Civ.App.) 285 S.W. 944; Acree v. State (Tex.Civ. App.) 47 S.W.2d...