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

• Decision Date: 17 February 1960
• Docket Number: No. 13577,13577
• Citation: 334 S.W.2d 220
• Parties: SACRED GARDENS OF MEMORY, INC., et al., Appellants, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 220

334 S.W.2d 220

SACRED GARDENS OF MEMORY, INC., et al., Appellants, v.STATE of Texas, Appellee.

No. 13577.

Court of Civil Appeals of Texas, San Antonio.

Feb. 17, 1960.

Rehearing Denied March 16, 1960.

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.This was a dedication.Once dedicated, the quoted portions of Art. 912a-11 exempt dedicated...