Rabb v. La Feria Mut. Canal Co.

• Decision Date: 27 June 1910
• Citation: 130 S.W. 916
• Parties: RABB v. LA FERIA MUT. CANAL CO.
• Court: Texas Court of Appeals

130 S.W. 916

RABB v. LA FERIA MUT. CANAL CO.

Court of Civil Appeals of Texas.

June 27, 1910.

Rehearing Denied October 5, 1910.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Action by Frank Rabb against the La Feria Mutual Canal Company. From an order dissolving in part a temporary injunction, plaintiff appeals. Affirmed.

James B. Wells and F. W. Seabury, for appellant. Kibbe & Holland, Noah Allen, and R. B. Creager, for appellee.

REESE, J.

This is an appeal from an order dissolving in part a temporary injunction. The temporary injunction was granted upon the application of appellant, enjoining appellee from trespassing upon land claimed by appellant, and was issued in connection with an action in trespass to try title instituted by appellant, as plaintiff, against appellee, the La Feria Land & Irrigation Company, and others. The land involved in this suit is a tract in the shape of a triangle 470.5 feet wide at the north end and about 14 miles long, running to a point at a base line on the Rio Grande river. Appellant and the La Feria Land & Irrigation Company own two adjoining tracts of land fronting on the Rio Grande and running thence north, one of them 14 miles and the other 18 miles. The dispute out of which grows this litigation arises out of a controversy as to the location of the division line starting from a known and undisputed point on the common base line of the two tracts on the Rio Grande river. Other parties to this suit claim portions of this land under conveyances from the La Feria Land & Irrigation Company. The canal company was organized in September, 1908, as an irrigation company, under the statute, by the stockholders of the La Feria Land & Irrigation Company and other landowners to irrigate their respective lands; each granting to the canal company rights of way for a canal over their respective lands at an agreed compensation of $75 per acre. The company began the construction of its canal on the land in controversy in July or August, 1909 under grant of right of way from the La Feria Land & Irrigation Company, which claimed to be the owner of the land, the title of which is also claimed by appellant Rabb. In August, 1909, appellant first learned that the canal was being constructed on the land, and employed a surveyor to ascertain the true location of the division line between his land and the tract of the irrigation company, and, negotiations for a settlement with the two companies having failed, he instituted said suit on November 6, 1909, and obtained a temporary injunction as aforesaid. On January 8, 1910, the canal company instituted proceedings under the statute for condemnation of land for a right of way for its canal over the said tract of land. These proceedings were instituted against appellant Rabb, who claimed to own the entire strip except three acres belonging to, or claimed by, one Prajedis Garza, the said Garza, the widow, and executors of Bedell Moore, who held a mortgage on all of appellant's lands, and the La Feria Canal & Irrigation Company. The statement made to the county judge in initiating these proceedings contained the allegation that these parties "own and claim to own, hold, have, and claim to have some right, title, and interest in and to the lands sought to be condemned." Commissioners were appointed by the county judge and duly qualified. A hearing was had, at which all the parties appeared and were heard, appellant protesting against the legal competency of the commissioners, and saving his right to object to the proceedings in the proper courts. The commissioners made the following award: "And we do hereby assess the damages due to La Feria Land & Irrigation Company, Frank Rabb, estate of G. Bedell Moore, Prajedis Garza, and Mrs. Elizabeth B. Moore, as owners of said land, by said La Feria Mutual Canal Company, as follows, to wit: For first tract, containing 5.9 acres, the sum of three hundred and fifty-four ($354) dollars. For second tract, containing 54 acres, the sum of one thousand eight hundred and ninety ($1,890) dollars. For third tract, containing 15.9 acres, the sum of three hundred and ninety-seven and 50-100 ($397.50) dollars. As special damages accruing to the owner or owners of that part of said third tract, occupied by Prajedis Garza, and being the improved part thereof, the sum of four hundred ($400) dollars, making a total of three thousand and forty-one and 50-100 ($3,041.50) dollars hereby awarded against said La Feria Mutual Canal Company."

All the defendants in that proceeding, except the irrigation company, filed their opposition to the report, and the proceeding as to them is pending, on appeal, in the county court. After the award was made, the canal company deposited the amount of the award, with an equal additional sum, with the county clerk, filed the bond required by the act of 1899, and paid the cost of the proceeding, and afterwards filed in the district court its amended answer, not under oath, wherein it denied specifically each of the material allegations of the petition, and setting out the condemnation proceedings aforesaid, and moved the court to dissolve the temporary injunction previously granted as to it. To this appellant replied by supplemental petition, attacking, on various grounds, which will be hereafter referred to, the condemnation proceedings. The district judge, upon the hearing of the motion, entered an order respecting the said condemnation proceedings that the same were in all things regular and legal and entitled the canal company to take possession of the land so condemned, and dissolving the temporary injunction as to said lands, fully identifying and describing the same. From this order this appeal is prosecuted.

The assignments of error challenge the validity of the condemnation proceedings on various grounds.

The first ground of objection is that the proceedings were void by reason of the absence of the fact, which is claimed to be jurisdictional, that the condemnor and the landowner had been unable to agree on the damages. This fact was properly alleged in the statement filed with the county judge asking for the appointment of commissioners. This was sufficient to authorize him to act. Articles 4447, 4448, Rev. St. 1895. It is correctly stated in the brief of appellant that, under the statute, neither the county judge, upon the filing of the statement with him, nor the commissioners, upon the hearing with regard to the damages, can inquire into the truth of the facts upon which this jurisdiction is invoked, but that this cannot be done until the hearing in the county court of the appeal from the award of the commissioners. This appeal is now pending and is yet to be heard, so that, up to the time the motion to dissolve the injunction was heard in the district court, the condemnation proceedings were, as found by the district judge, in all respects legal and regular. Further, it was stated in the supplemental petition of appellant that, after the surveyor had reported to him the true facts about the location of the division line referred to, he spent three weeks negotiating a settlement with the canal company and the irrigation company through purchase of his land taken by them both, which were fruitless. What were these negotiations about so far as the canal company was concerned? It only wanted a right of way, and it must be presumed that the negotiations with it were for the acquisition of this right. The negotiations, as appellant alleges, failed. It seems to us that with these two parties both claiming this strip of land and whatever damages there might accrue from the opening of the canal on the face of it, it was impossible for the canal company to agree as to the amount of damages due appellant, unless it accepted him as the owner and paid him full damages, taking the risk of having to pay the irrigation company also in the event the land was adjudged in this suit to belong to it. This it could not be required to do. It seems to us that it would be trifling with the rights of appellee, and that it would serve no purpose except delay to send it back now to make an attempt, in which it would necessarily fail, to agree with appellant as to the amount of damages to be paid him, if in fact it did not appear, which we think is shown prima facie, that such attempt has been made and failed. This objection to the proceeding cannot be sustained.

It was also objected that the condemnation proceedings were void because of the pendency of this suit whereby the jurisdiction of the district court attached to the land in controversy, in which the land could be condemned for the use of the canal company. It is true that in this suit the district court had authority to condemn the land and award the damages (article 4472, Rev. St. 1895), but necessarily this could not be done until a final determination of the question of title as between appellant and the irrigation company. Appellee could not be required to wait until this was done, but might resort to the proceeding under the statute, as it did do, in order to have an immediate condemnation. Otherwise it might have to wait for years before it could proceed with the prosecution of this quasi public work. The purpose of the statute in allowing the condemnor to take possession pending appeal from the award by the commissioners upon certain conditions insuring the eventual payment of the damages was to avoid this delay.

It is also objected that the right of way condemned was 200 feet wide, while it is contended that the statute limited it to 100 feet. Appellant arrives at this conclusion by construction of the provision of the statute giving a right of way not exceeding in width 100 feet over public lands. Article 3126, Rev. St. 1895. There is no merit in this contention.

Nor is there any merit in the contention that the...