Sabine River Authority of Tex. v. McNatt

• Decision Date: 03 June 1960
• Docket Number: No. 15735,15735
• Citation: 337 S.W.2d 325
• Parties: SABINE RIVER AUTHORITY OF TEXAS, Appellant, v. J. P. McNATT et al., Appellees.
• Court: Texas Court of Appeals

Page 325

337 S.W.2d 325

SABINE RIVER AUTHORITY OF TEXAS, Appellant, v. J. P. McNATT et al., Appellees.

No. 15735.

Court of Civil Appeals of Texas, Dallas.

June 3, 1960.

Rehearing Denied July 8, 1960.

H. P. Kucera, City Atty., and N. Alex Bickley, Asst. City Atty., Dallas, Byron Tinsley and Lutcher Simmons, Orange, and Allen Clark, Greenville, for appellant.

O. B. Fisher, Paris, G. C. Harris, Olin P. McWhirter and Ben F. Lowrie, Greenville, for appellees.

YOUNG, Justice.

On September 22, 1959 McNatt and others filed this suit in Hunt County to enjoin appellant Authority from exercising any powers of eminent domain as authorized by Art. 7880-126, Vernon's Ann.Civ.St. (Acts of 1931, 42nd Legislature) on grounds of unconstitutionality, other landowners intervening. On hearing, a temporary injunction was granted, restraining defendant District from proceeding or taking any action to acquire the lands of appellees pursuant to Art. 7880-126, declaring said legislation 'void and unconstitutional for the reasons stated in plaintiffs' petition' and pleas of intervention; the District duly appealing.

The Sabine River Authority of Texas is a governmental agency created by Art. 8280-133, V.A.C.S.; at the present time engaged in acquiring lands within the Sabine River Water Shed and Tributaries for construction of reservoirs within the State of Texas for use by various cities. Appellees (plaintiffs and intervenors) owned certain lands which are necessary to construction of the Iron Bridge reservoir by the Authority; which project is now under construction insofar as the dam, outlet and impounding facilities are concerned and is nearing completion. The parties had earlier failed in efforts to agree on land values; whereupon the Authority had instituted various condemnation suits under Title 52, Vernon's Ann.Civ.St. art. 3264 et seq., by filing a petition with the County Judge of Hunt County, who appointed special commissioners but no hearings were hade or awards made. About September 14, 1959, the Authority by resolution had elected to adopt the procedure for condemnation outlined in Art. 7880-126 in lieu of the provisions of title 52, Eminent Domain; thereby activating the instant suit; defendant on October 1, 1959 presenting a petition to District Judge Myers under authority of Art. 7880-126 seeking to set up the 'tribunal' there provided for, preliminary to a condemnation of these Hunt County lands by means of the latter Statute.

The Legislature purpose of Art. 7880-126 (Acts of 1931) was stated as fixing a more practical, economical and equitable procedure for condemnation by water control and improvement district; having been enacted in lieu of Act of 1929 Legislature, Sec. 14 of which had been held unconstitutional in White v. Maverick County Water Control and Improvement District, Tex.Com.App., 35 S.W.2d 107. Ways and means for a more expeditious acquisition of land or interest therein by these Districts through condemnation suits have been the subject of considerable litigation. In 16 Tex.Jur. (Eminent Domain) p. 333, Sec. 72, it is stated that:

'In the original Act of 1925 (RS Art. 7880-126, as originally enacted by Acts 1925, 39th Leg. RS p. 123, ch. 25, Sec. 126), it was provided that all procedure with reference to condemnation, appeal, and payment should be in accord with the provisions of the general condemnation statute. In 1927, the legislature apparently made an attempt to amend this provision, but instead substituted for it a clause relating to an entirely different matter. (Act 1927, 40th Leg. 1st CS p. 496, ch. 107, Sec. 19). In 1929, the provision was again amended, and this time the legislature outlined in great detail an entirely new proceeding for condemnations, to be administered by a board of commissioners of appraisement appointed by the district directors. (RS Art. 7880-126 as amended by Acts 1929, 41st Leg. p. 578, ch. 280, Sec. 14). This procedure, 'so tediously prescribed' in the statute of 1929, was held to be violative of section 1 of article 11 of the Constitution by the Commission of Appeals in 1931. The Commission determined, however, that such districts could properly proceed under the provisions of the general condemnation statute. Subsequently, the legislature, in an enactment which recited that the effect of this decision was to 'deny to districts the right to exercise the more practical economical and equitable procedure for condemnation intended,' again amended the law, by giving the district directors the right to elect as to whether condemnation suits would by brought under the procedure prescribed by the general condemnation statute or under a modification of the special procedure hereinbefore referred to. (RS, as amended by Acts 1931, 42nd Leg. p. 466, ch. 275, Sec. 3)'.

As sole point of appeal, Sabine River Authority asserts that the trial court erred in holding Art. 7880-126, Acts of 1931, void and unconstitutional on grounds stated in the pleadings of appellees and grant against it of temporary injunction; appellees on the other hand contending that Art. 7880-126 as amended did not cure the basic infirmities of procedure discussed in the White appeal; that the 1931 Act is an almost verbatim reproduction of the condemned 1929 Act and is just as violative of the Constitution as it was before. Appellees in reply brief attach a photocopy of the 1929 Act (41st Leg.) and in columns headed '1929' and '1931' presents material portions of each Act by way of comparison, viz.:

1929 Act

1. District Directors shall appoint three member board of Commissions, possessing certain qualifications. (subsec. a)

2. At first meeting Commissioners to take oath prescribed. (subsec. b)

3. 'In all matters before said commissioners they shall have the power to administer oaths, compel the attendance and testimony of witnesses and the production of documentary evidence, in all things as may be done by a court of record.' (subsec. a)

4. Secretary of Board of Directors to be Secretary of Commissioners. (subsec. b)

5. Within 30 days Board to begin duties and may require presence and necessary assistance of District's Engineers and Attorneys. (subsec. c) 6. Board shall view all lands, appraise and assess the value of the affected lands, be governed by the provisions of Article 3265, R.C.S. of Texas. 'All provisions of Title 52 of the Revised Civil Statutes of Texas, shall control condemnation proceedings hereunder as to all matters not herein otherwise provided for, but the specific provisions, and intent, hereof shall control in all cases of doubt.' (subsec. d)

7. District may waive provision of this Section; in such event the procedure may be the same provided in Title 52. (subsec. d)

8. The Board shall prepare specific and detailed proposed findings, showing: (1) assessments of tax burdens; (2) value of land to be taken in fee simple; (3) amount of assessed compensation for easement to be taken; (4) amount to precompensate for injury or damage to property not condemned; (5) specify parts of land falling in more than one classification given; such report to be approved and signed by at least two members of Board. (subsec. d)

9. Report shall show number of days each commissioner has actually served and actual expenses incurred by each in serving the District; District to pay reasonable fees, not to exceed $25.00 a day. (subsec. d)

10. Commissioners in proposed report to fix times and places when and where they shall hear objections to their findings as reported. (subsec. d) 11. Upon filing of proposed report with District's Secretary, such secretary to give notice by publication, and at least 10 days before any hearing by mail or personal service to each landowner, giving substance of report filed; that landowner may examine same and file objection to all or any part of such report. (subsec. e)

12. At or before hearing of filed report, landowner may file exception to all or any part of report and may or shall file with District claim for damages. (subsec. f)

13. Board of Commissioners at time and place named shall hear evidence, determine all objections and claims for damages; may grant in whole or in part or overrule any claims or other exceptions to report; may recess from day to day or place to place. (subsec. f)

14. Board enters final decree concerning proposed report, condemn all such lands, apportion and adjudge costs incurred in such manner of allocation as may be deemed equitable; condemnation to be of fee simple title or easement as may have been elected or designated by Directors; adjudge and award all compensation for property or easement taken, and all damages, if any. (subsec. f)

15. Certified copy of final decree filed with County Clerk for record; such record to be notice to all persons of contents of such decree. (subsec. f)

16. The original decree shall be permanent record of District and shall also constitute notice. (subsec. f) 17. All decrees shall be subject to appeal or judicial review in the manner hereby specified and not otherwise: (subsec. f)

(a) Only question to be considered is whether just compensation has been allowed or whether any damages are lawfully recoverable.

(b) Such appeal shall be taken to the County Court

(c) Notice of appeal shall be given within 2 days after entry of final decree, by filing written notice--simple statement, specifying exact claims sought to be established--with Secretary of District.

(d) Within 5 days after entry of decree, appellant shall file with clerk of court to which appeal is taken a bond.

(e) Unless appeal is perfected within 7 days after day of rendition of final decree, such decree shall be instantly final and conclusive and there shall be no extension of time for filing appeal.

(f) Within 12 days after entry of final decree, if appeal is prosecuted, Secretary shall file with Clerk of Court certified transcript of final decree.

(g) All appeals shall constitute one cause in County Court and shall be so docketed.

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