Nelson v. State, 10648

• Decision Date: 15 April 1959
• Docket Number: No. 10648,10648
• Citation: 324 S.W.2d 898
• Parties: C. T. NELSON et ux. et al., Appellants, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 898

324 S.W.2d 898

C. T. NELSON et ux. et al., Appellants, v. STATE of Texas, Appellee.

No. 10648.

Court of Civil Appeals of Texas, Austin.

April 15, 1959.

First Motion for Rehearing Overruled May 20, 1959.

Second Motion for Rehearing Overruled June 10, 1959.

Frank L. Scofield, J. Hubert Lee, Austin, for appellants.

Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins, Asst. Attys. Gen., for appellee.

GRAY, Justice.

This is a condemnation proceeding brought by the State against appellants to condemn land for highway purposes.

A statement for condemnation was filed with the county judge and commissioners were appointed. This statement described the land as being in Travis County and by metes and bounds as follows:

'Beginning at a point in the south property line, said point being on the centerline of U. S. Highway 81 (Interstate) at Engineer's Station 14 plus 24.3 as located by the Texas Highway Department, and also being in the north right of way line of an abandoned county road;

'Thence North 60~ 54' West 96.5 feet along said north right of way line to a point, said point being the southwest property corner, and also being in the east right of way line of the existing U. S. Highway 81;

'Thence North 12~05' West 1,340.8 feet along said east right of way line crossing the centerline of U. S. Highway way 81 (Interstate) at Engineer's station 1 plus 74.5 to a point, said point being the northwest property corner, and also being the south right of way line of a county road;

'Thence North 76~07' East 200.9 feet along said south right of way line to a point, said point being South 76~07' West 1,250 feet from the northeast property corner;

'Thence South 11~50' East 978.2 feet to a point;

'Thence South 15~ 21' East 571.5 feet parallel to and 150.0 feet from the centerline of U. S. Highway 81 (Interstate) to a point, said point being in the north right of way line of an abandoned county road;

'Thence North 60~ 54' West 210.1 feet along said north right of way line to the point of beginning and containing 6.706 acres of land, more or less.'

The above described land was only a portion of the tract owned by appellants.

The Commissioners made their award, appellants filed objections and a jury trial followed. The trial began June 24, 1958 and on June 26 the State filed 'its trial amendment to its original statement or petition in condemnation.' In this amendment the land was described as follows:

'Beginning at a point in the south property line, said point being on the centerline of U. S. Highway 81 (Interstate at Engineer's Station 14 plus 83.4 as located by the Texas Highway Department, and also being the centerline of an abandoned county road 'Thence, N. 60~54' W., 99.5 feet along said south property line to a point, said point being the southwest property corner, and also being in the east right of way line of the existing U. S. Highway 81;

'Thence, N. 12~ 05' W., 1,397.5 feet, along said east right of way line crossing the centerline of U. S. Highway 81 (Interstate) at Engineer's Station 1 plus 74.5 to a point, said point being the northwest property corner, and also being in the south right of way line of a county road;

'Thence, N. 76~ 07' E. 200.9 feet along said south right of way line to a point;

'Thence, S. 11~ 50' E. 978.2 feet to a point;

'Thence, S. 15~21' E., 630.6 feet parallel to and 150.0 feet from the centerline of U. S. Highway 81 (Interstate) to a point, said point being in the south property line;

'Thence, N. 60~ 54' W., 245.1 feet along said south property line to the point of beginning, and containing 7.00 acres of land, more of less.'

The above amendment followed a stipulation of the parties that the description of the land might be amended to include appellants' interest in the abandoned road.

The jury found that: the market value of the land taken was $1,820; the market value of appellants' land, exclusive of the strip taken, immediately before the taking was $25,256, and immediately after the taking the market value of the remainder of the tract was $41,160.

Judgment on the jury's verdict was entered and the State was awarded the land described in the amendment.

Appellant say that the trial court was without jurisdiction to enter the above judgment because 'the land being taken lay in both Travis and Williamson County, and comprised a portion of the homestead of Defendants C. T. Nelson and Edith Nelson who live in and are residents of Williamson County, Texas.'

In support of their contention appellants rely on Sec. 1 of art. 3264, Vernon's Ann.Civ.St., which in part provides that 'Where the land lies in two or more counties, in one of which the owner resides, the statement shall be filed in the county of the owner's residence.' The section also provides that residence.' This section also provides that filed in the county where the land or a part thereof is situated.

An Act of the 55th Legislature, codified as art. 6674w, Vernon's Ann.Civ.St., delegated additional authority to the State Highway Commission. Art. 6674w-3 provides that in the acquisition of property for highway purposes by condemnation the suit shall be prosecuted in the name of the State and that the venue of any such suit shall be in the county in which the property or a part thereof is situated. The Act further provides that in the exercise of the power of eminent domain the Highway Department shall be subject to the laws and procedures prescribed by Title 52, arts. 3264-3271, inclusive, as said title or articles have been or may be amended.

Art. 6674w, supra, fixes venue of suits of the kind here in the county where the property of a part thereof is situated and by appellants' own statement a part of the land is situated in, travis County. This article specifically deals with the acquisition of property for highway purposes while art. 3264, supra, deals with the right of eminent domain generally. We think the rule applicable to the question presented is that stated in 50 Am.Jur. p. 564, Sec. 563 as follows:

'* * * a statute enacted for the primary purpose of dealing with a particular subject prescribing terms and conditions covering the subject matter, supersedes a general statute which does not refer to that subject, although broad enough to cover it.'

It is our opinion that a question of venue and not jurisdiction is presented and that art. 6674w-3 is applicable. We are further of the opinion that appellants waived any valid objection which they may have had to venue in Travis County by not objecting to such venue in limine. The question of venue has been raised for the first time on appeal. This is too late.

After the trial but prior to judgment appellants filed their motion to dismiss the cause because the trial court was without jurisdiction of the land described in the amendment because the land there described was not before the commissioners.

The parties treat the approximately .3 of an acre of land in question as being owned by appellants and we will assume for the purpose of this decision that the land to the center of the abandoned road was so owned.

Except as going to the question of intent later noticed, we attach no importance to the stipulation of the parties supra because jurisdiction could neither be conferred by agreement nor by waiver. Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797. Here the question of jurisdiction is of the subject matter which cannot be conferred by consent. Campsey v. Brumley, Tex.Com.App., 55 S.W.2d 810. The question here is: Did the description of the land in the statement for condemnation have the legal effect of describing the land to the center of the abandoned road?

We will first notice the words 'more or less' used as a part of the description of the land to be taken as set out in the statement of condemnation and for the taking of which the commissioners made an award. As there used these words followed a particular description and merely qualified the quantity of land contained in the particular description. They 'contribute little or nothing toward identifying the land' and only evidence the intent to risk some loss or gain in the estimated quantity of land. They cannot be construed to include land not included within the particular description. Wooten v. State, 142 Tex. 238, 177 S.W.2d 56.

Sec. 1 of art. 3264 supra provides that the statement for condemnation 'shall describe the land sought to be condemned.'

'The statute requires the applicant for condemnation of land 'to state in writing the real estate and property sought to be condemned,' and, if this be not so done as to identify the land to be taken, the jurisdiction of the tribunal having power to condemn never attaches, it matters not what notices of the proceeding may be given.' Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, 519.

Wooten v. State, supra.

The amended description contained approximately .3 of an acre of land not described in the description set out in the statement for condemnation. This being true then unless it can be said that the amended description better described the land taken this approximately .3 of an acre was not before the commissioners and the power to condemn it never attached. In testing the sufficiency of the description here it is proper to apply the test of sufficiency required in conveyances of land. However in doing so we must bear in mind that the road in question is an abandoned road.

It is the general rule that, in the absence of an express reservation to the contrary, the grantor of land lying along a public road is presumed to convey to his grantee the land to the center of such road. This rule is bottomed on the theory that the use of the road is a right and an appurtenance passing with the land. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Cox v. Compbell, 135 Tex. 428, 143 S.W.2d 361. In Goldsmith v. Humble Oil & Refining Co., 145 Tex. 549, 199 S.W.2d 773, 776, the...