State v. Nelson

Decision Date13 April 1960
Docket NumberNo. A-7430,A-7430
Citation334 S.W.2d 788,160 Tex. 515
PartiesSTATE of Texas, Petitioner, v. C. T. NELSON et al., Respondents.
CourtTexas Supreme Court

Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins & James P. Ryan, Asst. Attys. Gen., for petitioner.

Frank L. Scofield, J. Hubert Lee, Austin, for respondents.

WALKER, Justice.

This is a condemnation proceeding instituted by the State of Texas, petitioner, against C. T. Nelson and wife, respondents, to acquire certain land to be used as right of way for Interstate Highway No. 35. The statement for condemnation filed with the county judge and acted upon by the commissioners purports to describe by metes and bounds a tract of land alleged to contain 6.706 acres, more or less. In the course of the trial on appeal in the county court, the State was permitted to amend the description to embrace an adjoining strip of land some 42 feet wide by 345 feet long, containing .3 of an acre. This was done pursuant to a stipulation of the parties, but after the jury returned its verdict respondents moved to dismiss the cause on the ground that the court had no jurisdiction to condemn the .3-acre strip. The motion was overruled, and judgment was entered condemning the entire tract as described in the trial amendment. The Court of Civil Appeals reversed, dismissed the proceeding as to the additional strip, and remanded the cause with respect to the remainder of the land. 324 S.W.2d 898.

Having agreed to the trial amendment, respondents are not in position to complain of the same unless the court had and could acquire no jurisdiction over the additional land. It is our opinion that the amendment was properly allowed under the circumstances disclosed by this record. When objections to the commissioners' decision are timely filed, the cause is to be tried and determined by the county court as in other civil cases. Article 3266, Vernon's Ann.Tex.Civ.Stat. Subject to jurisdictional limitations, there is no reason why the rule which permits pleadings to be amended should not apply to the proceeding after it has become a case in court. See Gulf, C. & S. F. Ry. Co. v. Kerfoot, 85 Tex. 267, 20 S.W. 59. It is settled, for example, that the pleadings can be amended in the county court to set up additional grounds for attacking the award. Coastal States Gas Producing Co. v. Pate, Tex., 309 S.W.2d 828. Where the landowner will not be prejudiced, the condemning authority may also amend the description and abandon part of the land or rights which it had previously sought to condemn. Texas Power & Light Co. v. Cole, Tex., 313 S.W.2d 524.

On the other hand, Section 1 of Article 3264, Vernon's Ann.Tex.Civ.Stat., provides that the statement for condemnation shall describe the land sought to be condemned. As pointed out in Galveston, H. & S. A. R. Co. v. Mud Creek I A. & M. Co., 1 White & W.Civ.Cas.Ct.App. §§ 393, 394 et seq. the written statement is the initiatory step in the proceeding, and it is by virtue of this step that jurisdiction over the subject matter involved is acquired. Unless the land to be taken is adequately identified, the owner cannot know what portion of his property is required, nor the commissioners what damages to assess, nor can the court by its decree effectively pass title. It has accordingly been held that the jurisdiction of the tribunal having power to condemn does not attach unless the statement includes a legally sufficient description of the property sought to be condemned. Wooten v. State, 142 Tex. 238, 177 S.W.2d 56; Parker v. Fort Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518. In each of these cases the proceeding went to judgment without an adequate legal description, and there was no attempt to cure the defect by amendment.

Some of our Courts of Civil Appeals have taken the position that the county court has no power to allow an amendment changing, or correcting a mistake in, the description of the land, or supplying essential jurisdictional allegations omitted from the original statement. Johnston v. Galveston County, Tex.Civ.App., 85 S.W. 511 (wr. dis.); Wise v. Abilene Water Co., Tex.Civ.App., 261 S.W. 549 (wr. dis.). The contrary view was expressed in Houston & T. C. R. Co. v. Postal Telegraph Cable Co., 18 Tex.Civ.App. 502, 45 S.W 179 (no writ), where it was said that the authority of the county court to allow amendments, and its jurisdiction to try the cause upon such amendments, are as complete as though the proceedings had originated in that court.

As observed by the court in the Johnston case cited above, the eminent domain jurisdiction of the county court is appellate as distinguished from original or concurrent. The parties may not avoid an initial administrative hearing even if they wish to do so. Our statutes permit the court to act only after the damages have been determined by three disinterested freeholders of the county. When the statutory plan is followed, the parties often accept the commissioners' decision or settle their differences shortly after the award is made. The Legislature evidently had this in mind when it admonished the county judge that in appointing the special commissioners he should give preference to those agreed upon by the parties. Many eminent domain proceedings are thus brought to a prompt and reasonably satisfactory conclusion with a minimum of expense and inconvenience to the parties. A holding that the county court on appeal has all of the power of a court of original jurisdiction would tend to thwart the purpose of the Legislature in providing for the administrative hearing. It would also violate the elementary rule as to the subject matter over which an appellate tribunal may properly exercise its jurisdiction. See Wilbarger County v. Hall, Tex.Com.App., 55 S.W.2d 797; 2 Am.Jur., Appeal and Error § 11.

Since the Legislature has not seen fit to give the county court original jurisdiction in eminent domain proceedings, such court does not have unlimited power to enlarge the subject matter of a particular cause by allowing amendments to the pleadings. It could not, for example, acquire by amendment the power to condemn land which is not described in the statement for condemnation and where there is nothing in the statement to suggest that the condemning authority intended to take the same. This is not to say that the court can never order the condemnation of any...

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  • Foster v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 3, 1982
    ...consent of the parties, Macdiarmid v. Lawbar Petroleum, 456 F.Supp. 503 (E.D.Tex.1978); Nelson v. State, 324 S.W.2d 898, rev'd 160 Tex. 515, 334 S.W.2d 788, nor can it be waived by the failure of the defendant to object. Casias v. Texas, 503 S.W.2d 262. Rather, such a void judgment is concl......
  • City of Keller v. Wilson
    • United States
    • Texas Court of Appeals
    • July 3, 2002
    ...Such a pleading is required so that the condemnee is on notice of what land the governmental entity is seeking. State v. Nelson, 160 Tex. 515, 518, 334 S.W.2d 788, 790 (1960); Lin, 948 S.W.2d at In an inverse condemnation proceeding, however, the alleged taking or damaging of property has a......
  • State v. Frost
    • United States
    • Texas Court of Appeals
    • April 15, 1970
    ...and the condemnor should be allowed to abandon such unnecessary lands or rights. Texas Power & Light Co. v. Cole, supra; State v. Nelson, 160 Tex. 515, 334 S.W.2d 788. While we do not base our decision in this case strictly upon the refusal of the trial court to permit appellant to amend it......
  • Lin v. Houston Community College System
    • United States
    • Texas Court of Appeals
    • May 27, 1997 required, nor the commissioners what damages to assess, nor can the court by its decree effectively pass title." State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 790 (1960). The sufficiency of the petition's description of the property is tested by the standards used for adequacy of descri......
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