Sacred Gardens of Memory, Inc. v. State, 13577

Decision Date17 February 1960
Docket NumberNo. 13577,13577
Citation334 S.W.2d 220
PartiesSACRED GARDENS OF MEMORY, INC., et al., Appellants, v. STATE of Texas, Appellee.
CourtTexas Court of Appeals

Fred C. Reeder, George Prowse, Wm. David Bonilla, Corpus Christi, for appellants.

Franklin L. Smith, County Atty., C. Edwin Prichard, Jr., Asst. County Atty., Corpus Christi, for appellee.

POPE, Justice.

State brought this proceeding to condemn a cemetery for the improvement of Highway 44 in Nueces County. Sacred Gardens of Memory, Inc., a perpetual care cemetery, appealed from the judgment upon the verdict rendered by the County Court at Law of Nueces County. Sacred Gardens here complains (1) that the State of Texas failed to follow the procedures outlined by Article 6674n, Vernon's Ann.Tex.Stats., and that the County Attorney of Nueces County lacked authority to represent the State, (2) that the lienholder for the condemned tract is a necessary party, but was not made a party to the condemnation proceeding, and (3) that Article 912a-11, Vernon's Ann.Tex.Stats., prohibits a condemnation of property dedicated to cemetery purposes.

Sacred Gardens may not complain that the County Attorney had no authority to act as attorney for the State because it failed to furnish the field notes for the property condemned. Article 6674n charges the State Highway Commission with the duty of furnishing the Commissioners' Court with the plats or field notes of the right-of-way or land required. Sacred Gardens, however, withdrew the award made by the Special Commissioners, and in doing so waived its complaint. City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 476; Crockett v. Housing Authority of City of Dallas, Tex.Civ.App., 274 S.W.2d 187. Accord, Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93.

Sacred Gardens, not the lienholder, complains that the one who holds a lien against the realty was not a party to the proceeding. The inferences from the record are that he too withdrew the award. However, in Union Fraternal Latino Americana v. City of San Antonio, Tex.Civ.App., 315 S.W.2d 68, this Court held that a party in the position of Sacred Gardens is not injured by the nonjoinder of other parties.

Sacred Gardens' third contention challenges the jurisdiction of the County Court. Article 912a-11, Vernon's Ann.Tex.Stats., states that property dedicated to cemetery purposes 'shall be held and used exclusively for cemetery purposes, unless and until the dedication shall be removed by an order and decree of the district Court of the county in which the same is situated, in a proceeding brought therefor * * *. After such dedication and so long as said property shall remain dedicated to cemetery purposes, no railroad, street, road, alley, pipe line, telephone, telegraph, or electric line, or other public utility or thoroughfare whatsoever shall ever be laid out through, over, or across any part thereof, without the consent of the directors of the cemetery association owning or operating the same, or of not less than two-thirds of the owners of burial plots therein, * * *.' There was no proceeding brought in the District Court to remove the dedication.

Sacred Gardens complied with Art. 912a-10, Vernon's Ann.Tex.Stats., by platting the cemetery and by filing the map and certificate with the County Clerk. Oakland Cemetery Co. v. People's Cemetery Ass'n, 93 Tex. 569, 57 S.W. 27, 55 L.R.A. 503; Cedar Hill Memorial Cemetery Ass'n v. Storie, Tex.Civ.App., 281 S.W.2d 144....

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4 cases
  • Gossett v. State, 4156
    • United States
    • Texas Court of Appeals
    • July 21, 1967
    ...476 (1897). See also McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App.1960, wr. ref. n.r.e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App.1960, no wr. hist .), 22 Tex.Jur.2d 380, Eminent Domain, § 266--Waiver of right to object to Appellants con......
  • State v. Jackson
    • United States
    • Texas Supreme Court
    • April 7, 1965
    ...2 See also, McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App., 1960, wr. ref., n. r. e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App., 1960, no wr. hist.), 22 Tex.Jur.2d 380,EminentDomain, § 266-Waiver of right to object to appropriation. Respo......
  • Laurel Land Memorial Park, Inc. v. Dallas Cent. Appraisal Dist.
    • United States
    • Texas Court of Appeals
    • October 20, 1995
    ...that a cemetery owner publicly dedicates is exempt from the exercise of eminent domain. Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220, 222 (Tex.Civ.App.--San Antonio 1960, writ ref'd n.r.e.). Also, dedicated cemetery property is not subject to levy and execution. TEX.HEALTH & SAFE......
  • McCampbell v. Coastal States Crude Gathering Co., 184
    • United States
    • Texas Court of Appeals
    • February 24, 1966
    ...476 (1897). See also, McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App.1960, wr. ref., n.r.e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App.1960, no wr. hist.), 22 Tex.Jur.2d 380, Eminent Domain, § 266--Waiver of right to object to appropriation......

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