State v. Easley
| Decision Date | 15 June 1966 |
| Docket Number | No. A--10830,A--10830 |
| Parties | The STATE of Texas, Petitioner, v. Tom D. EASLEY et al., Respondents. |
| Court | Texas Supreme Court |
Waggoner Carr, Atty. Gen., Austin, Hawthorne Phillips, Stanton Stone, T. B. Wright, Watson C. Arnold, Woodrow Curtis and Robert D. McGee, Asst. Attys. Gen., for petitioner.
H. A. Coe, Kountze, for respondents.
This is a suit brought by the State of Texas, as plaintiff, against Tom D. Easley et al., as defendants, in a district court of Hardin County, Texas, in the nature of a trespass to try title action. The land sued for was that portion of a 2.115-acre tract near Kountze, Texas, within the limits of the right-of-way of State Highway No. 40, later also known as Highway No. 69, between Kountze and Woodville, Texas.
All parties have treated this suit as having been disposed of by a summary judgment rendered by the district judge in favor of defendant and in a hearing on motion for summary judgment filed by the plaintiff and a separate motion filed by the defendants. The judgment entered by the trial court denied plaintiff's motion and granted the defendants' motion and rendered judgment for the defendants. On appeal, the Court of Civil Appeals reformed and affirmed the trial court's judgment. 390 S.W.2d 24.
We reverse the judgment of both courts below and remand the cause to the trial court with instructions to render judgment for the plaintiff, the State of Texas.
In addition to the 'pleadings, depositions and admissions on file, together with affidavits, if any' as specified by Rule 166--A, Texas Rules of Civil Procedure, the parties introduced extrinsic evidence consisting of a portion of the Minutes of the Commissioners Court of Hardin County, Texas, September 12, 1960; numerous maps or plats of the highway area involved; a certified copy of a part of the proceedings in Cause No. 1342 in the County Court of Hardin County, Texas; the conveyance from the State to Hardin County of a 1.64-acre tract within the old highway right-of-way; the dissolution instruments of the old Olive-Sternenberg Lumber Company; and a deed from Cecil Smith et al. to defendant Tom D. Easley, describing the 2.115 acres of land, which includes the land in controversy. None of the items enumerated in the above sentence were attached 'thereto or served therewith' of either of the affidavits supporting either party's motion for summary judgment. A reading of Rule 166--A demonstrates that none of these instruments was entitled to consideration in a summary judgment hearing. The trial court's judgment recites that extrinsic evidence was heard and the trial court filed findings of fact and conclusions of law. None of these has any place in a summary judgment proceeding.
The facts giving rise to this litigation are as follows: In 1938 the Highway Commission relocated Highways 40 and 69 at the place where this land is situated. To do this, the State needed additional land for right-of-way. Olive-Sternenberg Lumber Company, a corporation, owned the land, and on June 11, 1938, by warranty deed containing no restrictions or reservations, conveyed to the State of Texas two tracts of land aggregating 33.61 acres. The deed granted and sold, and the habendum and warranty clauses covered, the fee simple title to this land. The preliminary description in the deed recites: '* * * said strips of land lying within the limits of the right-of-way of the proposed relocation, widening and improvement of State Highway No. 40 in Hardin County, Texas.' At the end of the metes and bounds description of each of the tracts, the following appears: '* * * containing * * * acres of land for right-of-way purposes,' of which a certain number of acres were in the old right-of-way and a certain number of acres were new right-of-way. This deed conveyed to the State of Texas a fee simple title to the land therein described. Texas Electric Ry. Co. v. Neale, 151 Tex. 526, 252 S.W.2d 451 (1952).
To divest title to the land sued for herein, defendants rely on Art. 6674q-9, Vernon's Texas Civil Statutes. That portion relied upon reads as follows: '* * * provided that when the right-of-way, or any part thereof, pertaining either to a State Highway or a lateral road, has been abandoned because of the abandonment of such road for all public purposes, and such right-of-way, or any part thereof, was donated by the owner of the land for right-of-way purposes, then, and in that event, the title to the said right-of-way shall vest in said owner, his heirs or assigns * * *.' Defendants have a general warranty deed dated September 29, 1956, from Cecil Smith, E. W. Tubb, L. M. Feagin and D. G. Lindsey, conveying the 2.115 acres of land out of which the land in controversy is a part.
The State, on the other hand, contends that Article 6674q-9 is not applicable to the case at bar, but that it is controlled by Article 6673a, Sec. 1, Vernon's Texas Civil Statutes. As affecting our problem, that statute provides: The Highway Commission has 'the duty * * * to determine the fair and reasonable value of the State's interest in such land and to advise the Governor thereof.' * * * 'Provided further, that Upon recommendation of the State Highway Commission the Governor may execute a proper deed relinquishing and conveying the State's right, title and interest in such real property as follows:
'(a) If title to the State was acquired by donation, convey to the grantor, his heirs or assigns * * *.' (emphasis added.)
Sec. 5 of Art. 6673a provides: 'The Attorney General shall approve all transfers and conveyances under this Act, And in no event shall the right of the State of Texas to full and exclusive right of possession of all retained rights-of-way Be infringed or lessened in any manner thereby. * * *' (Emphasis added.)
Before the State's interest and title to land acquired for highway purposes may be transferred out of the State, four things under Art. 6673a are necessary: (1) The State Highway Commission must determine that the property theretofore acquired for highway purposes is not longer needed for such purposes; (2) the Commission must recommend to the Governor that the land be sold, advising as to the fair and reasonable value of the land or interest therein; (3) the Governor must execute a proper deed conveying the State's right, title and interest in the land; and (4) the Attorney General shall approve all transfers and conveyances under this Act.
The record in this case fails to show that either or all of the four requisite actions have been taken. Therefore, if Art. 6673a is applicable to our cause, the title to the land in controversy is now in the State.
Art. 6673a was last amended by the 53rd Legislature (...
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