Slack v. Magee Heirs

• Decision Date: 09 October 1952
• Docket Number: No. 12366,12366
• Citation: 252 S.W.2d 274
• Parties: SLACK v. MAGEE HEIRS et al.
• Court: Texas Court of Appeals

Page 274

252 S.W.2d 274

SLACK v. MAGEE HEIRS et al.

No. 12366.

Court of Civil Appeals of Texas, Galveston.

Oct. 9, 1952.

Rehearing Denied Nov. 6, 1952.

Vinson, Elkins & Weems, Thomas Fletcher and Robert E. Morse, Jr., Houston, R. Richard Roberts, of Houston, of counsel, for appellant.

Price Daniel, Atty. Gen. of Texas, Sam W. Davis, Cr. Dist. Atty., W. K. Richardson, Asst. Cr. Dist. Atty., Knipp & Broady, E. A. Knipp, of Houston, for appellees.

CODY, Justice.

This was a suit in two counts brought by the Magee Heirs, joined by the State and Harris County as the statutory agent for the State, against the defendants, including appellant. The first count was in trespass to try title to the land described in appellees' (plaintiffs' below) petition, it being stated in the petition that the State and County claim no interest except a right of way across the land. The second count was for a declaratory judgment to settle and fix the nature and extent of the rights of the parties in any portion of the aforesaid land; and in the alternative, if it be determined that the defendants had an interest in the land over which the State claims a right of way, then that the court condemn a right of way across the land under authority of Article 3269, R.C.S.1925, Vernon's Ann.Civ.St. art. 3269, etc.-The defendants other than appellant were disposed of either upon their disclaimers, or upon stipulations.

Appellant answered with pleas in abatement; pleas to the jurisdiction; general denial; plea of not guilty; a special plea alleging that the property contained valuable building material of the reasonable value of $300,000; appellant also urged other special pleas. In order that these pleas be understood, we here digress to make the following statements:

The facts of this case make the action of the State to condemn the right of way unusual, if not unique, so far as the reported cases of this State go. These facts are:

A. In this action the State is concerned with construction a multi-lane highway, 310 feet wide, across appellant's land. The highway was No. 73, and when completed, will connect Houston and Port Arthur. The highway, as engineered, is to be elevated about ten feet as it runs across appellant's land.

B. On October 7, 1939, E. A. Green and Albert Mills filed a plat of the Subdivision of San Jacinto River Estates No. 2, and, so far as procedure in such cases is concerned, thereby dedicated the streets shown on said plat to the public. For the determination of one of the principal points involved in this case, it is sufficient to say that Eddington Drive is shown upon said maps as a street 60 feet wide, running in an east-west direction. Appellant without dispute owns the surface estate in the land over which the State is constructing said highway, described in appellees' petition. And included within the land so described is a portion of Eddington Drive. If Eddington Drive is woned by the State, the appellant owns the land included therein, subject to the State's right of way. If Eddington Drive, for the reasons stated by appellant, is not owned as a right of way by the State, then appellant owns the fee-simple title to the surface therein, free of a right of way claim.-In any case, the portion of the land described in appellees' petition, which is 310 feet in width, includes a section of Eddington Drive to its full width of 60 feet.

C. Prior to the filing of the plat to said subdivision, the mineral estate in the land covered by said Subdivision was severed from the surface estate. Green and Mills did not own any portion of the mineral estate, but only owned the surface estate when they filed the plat aforesaid. None of the owners of the mineral estate joined in the dedication of the plat. For the purposes of brevity and simplification on this appeal, we will state that the Magee Heirs own 15/16ths of the oil, gas and mineral estate, and that appellant owns the remaining 1/16th,-this statements is made for the purposes of simplifying this appeal only, and is not made to bind any person.

D. The State acquired right of way deeds from the Magee Heirs, who, it is undisputed, did not own any interest in the surface estate.

E. The question of Eddington Drive aside, the land of appellant, which the State sought to condemn, consisted principally of a portion of the tier of lots in Block 29 of the Subdivision.

F. The Subdivision at the point of appellant's land on which the State is constructing the multi-lane highway was swampy, marsh land, having an elevation above sea level of from five to ten feet, and was subject to inundation by exceptionally high tide, and subject to overflow by the San Jacinto River. At the time of the trial, the topsoil of about half of the property here involved had been removed to be used as building material, to a depth of from 4 to 6 feet. A Mr. Shields, the sales agent for the owners, testified for appellant that he had seen the land overflowed for a depth of ten feet 'a couple of times.'

G. Sales of the land were made with reference to the plat in all instances. Except on Monmouth Drive, which is on the outer fringe of the eastern part of the Subdivision, the land was held in the form of acreage, held under fence, and used to run cattle on, or for purposes other than a residential addition. Appellant used his land both to run cattle on, and to extract sand and building material.

So much with reference to the digression made so that appellant's pleas may be understood.

It was appellant's contention, among others, that with respect to the plat:

(a) That the dedication was invalid; (b) that same had been abandoned; (c) that he was not bound thereby; and (d) that in any event the use of Eddington Drive for forming a portion of a multi-lane highway, was for a purpose different from that for which it had been dedicated, and the taking of same for such purpose was not an acceptance.

The trial court held as a matter of law that the dedication was valid and binding, and so charged the jury. The following statement is taken substantially from appellees' brief:

Four special issues were submitted to the jury, inquiring (a) as to the cash market value of the parts of the lots and blocks owned by appellant within the proposed right of way; (b) the value thereof after the taking of such right of way; (c) the market value of the remainder of appellant's land exclusive of the right of way; and (d) the value of the remainder after the taking of the right of way. The jury found that those portions of the lots and blocks owned by appellant which were included within the right of way were worth before the taking $700 per acre; after the taking $5 per acre; and found that the remainder of appellant's land was worth $750 per acre, both before and after the taking of the right of way.

The judgment awarded appellant damages in the sum of $10,242.22, and title to the surface estate and one-sixteenth of the mineral, subject to the dedication and subject to the adjudication of an easement and right of way to the State.

Appellant predicates his appeal upon twenty-three formal points, covering seven pages of his brief. Manifestly his points cannot be treated individually, but will be ruled on either specifically or disposed of by necessary implication.

The Trial Court had jurisdiction to try this case. Appellees' petition contained a count in trespass to try title, and sought a declaratory judgment determining the rights of all parties in the land described in appellees' petition. It is not open to question that the State in good faith contended that the plat and dedication of the aforesaid Subdivision was valid and binding, and that, in consequence, the State owned a right for street purposes, 60 feet wide, within, and forming a portion of the 310 foot right of way upon which it proposed to construct the multi-lane highway. Appellant contested this claim. The court, as stated above, held as a matter of law that the plat and dedication was binding, and that, to that extent, the State owned for street purposes the portion of Eddington Drive contained within the 310 feet to be used to construct said multi-lane highway. The interest claimed by the State was an interest in land. So the only court which had jurisdiction to pass upon this portion of the controversy was the District Court. We cite as sufficient authority on this point, if authority be needed, Blair v. Archer County, 145 Tex. 102, 195 S.W.2d 348. Had appellant disclaimed owning the right of way (Eddington Drive) claimed by the State, and thereby left remaining as the only controversy between the parties the sole question of the value of the land sought to be condemned, exclusive of Eddington Drive, a question of jurisdiction would have been presented which is not in the case which is now before us.

Until 1889, the County Court had exclusive jurisdiction over proceedings to condemn land for public purposes. At that time there were no district courts in the State which were in continuous session throughout the year. And the then exclusive proceeding for exercising eminent domain was expeditious and inexpensive. Prior to that time, land values throughout the State had been generally law; and railroads frequently had not troubled to institute condemnation proceedings, but simply built their railroads across both public and private domain; and landowners frequently would not attempt to prevent railroads from constructing their rights of way across land, without first paying therefor. Under such circumstances, after a railroad had been constructed, and the landowner brought an action in trespass to try title, the railroad could not cross-act to condemn the right of way upon which the railroad had theretofore constructed its line, but had to institute a separate proceeding in the County Court.

Since the cardinal principle of our blended system which is designed, within reason, to provide against a multiplicity of suits, the Legislature thought...