State v. Noser, 264
| Decision Date | 19 October 1967 |
| Docket Number | No. 264,264 |
| Citation | 422 S.W.2d 594 |
| Parties | STATE of Texas et al., Appellants, v. David H. NOSER et ux., Appellees. . Corpus Christi |
| Court | Texas Court of Appeals |
C. W. Pearcy, Atty. Gen., Highway Division, Austin, Travis Hiester, of Kelley, Looney, McLean & Littleton, Edinburg, for appellants.
Stonewall Van Wie III, of Rankin, Kern, Martinez & Van Wie, McAllen, for appellees.
This is a suit for declaratory judgment with an alternate plea in trespass to try title. The suit was brought by the plaintiffs to determine the title and right of possession to certain lands. The plaintiff landowners contended that they were the owners of a narrow strip of land in front of their property and that the officials of the State and County were claiming such land as part of the right of way to a public road. The plaintiffs named as defendants certain officials of Hidalgo County and of the State of Texas, individually and in their official capacities. The defendants answered and filed two dilatory pleas, the first a plea to the jurisdiction of the court based on sovereign immunity. They asserted that this was a suit against the State of Texas and that since the plaintiffs did not secure the consent of the legislature of this state to bring this suit, the court was without jurisdiction to hear the case. Subject to the foregoing plea, the State contended that the suit should be abated because the State of Texas was not, and has not been made a party to the suit; that the State of Texas was a proper, necessary and indispensable party to this cause of action. The individual defendants filed pleas of not guilty, general denials, disclaimers of any right, title or interest in the land in question as individuals or in their official capacities and alleged that they acted solely for and in behalf of the State of Texas claiming finally that the State of Texas had record title to the disputed strip of land, or if not, it had acquired an easement by prescription.
Prior to the actual trial before the court without the aid of a jury, the State of Texas filed a plea of intervention under certain stipulations whereby they would proceed to trial on the merits and that its plea of intervention would be without prejudice to the two dilatory pleas. The case then proceeded to trial in accordance with the procedure set out by the Supreme Court of Texas in the case of State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961). Based upon the Lain case the court proceeded to trial to determine from the evidence the issue of title and right of possession and therefore delayed action on the pleas until the evidence was in. The trial court rightfully concluded that if the plaintiffs failed to establish their title and right to possession the court would enter a take-nothing judgment against the plaintiffs, the same as in other trespass to try title cases. On the other hand, the court reasoned, if the evidence established superior title and right of possession in the sovereign, the public officials would be rightfully in possession of the sovereign's land as agents of the State and their plea to the jurisdiction based on sovereign immunity would have to be sustained. The defendants' and the State's plea in abatement rests on the contention that the State of Texas was a necessary and indispensable party to the cause of action since the plaintiffs sought alternatively possession, title and damages to the land claimed and used for highway and right of way purposes by the State of Texas. Therefore, the State of Texas was the proper, necessary and indispensable party and the cause of action should be abated until the State had been made a party to the suit.
It was developed in the course of the trial that back in 1926 the County of Hidalgo decided that a certain public right of way should be widened. Condemnation proceedings were commenced all along the public road including the strip of land in question. For some reason not fully developed in the record before us, the action on this particular piece of land was never finalized and the condemnation case was dismissed. The County subsequently transferred ownership to the entire public road to the State of Texas. Just prior to the instigation of this suit the State desired to further widen the road and was met by plaintiffs' suit to determine the title to the narrow 15 ft. 396 ft. strip of land lying adjacent to plaintiffs' property. Ancillary to plaintiff's suit, a temporary restraining order was entered and was subsequently dissolved along with a denial of the plaintiffs' application for temporary injunction against the State of Texas, when the State of Texas filed its plea of intervention which included an alternative plea for condemnation under article 3269, Tex.Rev.Civ.Stat.Ann.
Upon conclusion of the trial on the merits, the court overruled the defendants' plea to the jurisdiction, its plea in abatement and entered judgment for the plaintiffs that they recover from the defendants and intervenor the State of Texas the title and possession to the strip of land in controversy, but that the plaintiffs take nothing under their plea for damages in trespass. The court severed the State of Texas' alternative plea for condemnation contained in its plea in intervention, and entered final judgment as to all other matters and all other parties. The defendants and the intervenor State of Texas have perfected their appeal.
The appellees' first counter point is that this Court has no jurisdiction over this appeal for the reason that the appeal is not from a final judgment. It is appellees' contention that the issues involved in this suit were not segregated or severed before the trial on the merits began and that it was the intent of all of the parties concerned that if the State of Texas prevailed in this suit, a final judgment would be entered; but that on the other hand, if the appellees prevailed as they contend they have, the case would simply move into a new stage of procedure and that would be by way of condemnation for a determination of the value and damages to the strip of land that was to be taken. The trial court in its judgment, severed from the main suit the State of Texas' alternate plea for condemnation and entered a final and appealable judgment as to all parties not severed. The judgment appealed from is final. Appellees' counter point is overruled.
Appellants' first point is that the trial court erred in overruling defendants' plea to the jurisdiction; that this was a suit against the State of Texas instituted without legislative consent. It is the law in this state that a suit cannot be maintained against the State without the consent of the legislature. Dodgen v. W. D. Haden Company, 303 S.W.2d 443 (Tex.Civ.App.--Ft. Worth, 1957) affirmed 158 Tex. 74, 308 S.W.2d 838 (1958). It has been held that a suit is one against the State whether it be named a party against whom relief is sought or not, if the suit seeks in fact to control the State's action or subject the State to liability. Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S.W. 813 (1923) and W. D. Haden Company v. Dodgen (Tex.Sup.1958). Appellants contended that actually and technically this is a suit against the State based on appellees' pleadings and defendants' answers; that the State has a claim of title of easement by prescription and that it was in possession of the land in controversy. They further contend that the State actually did have an easement by prescription and was entitled to possession and that the evidence in this case clearly shows this to be true as pointed out further in other points of error.
The case turns on the question of whether or not the State has a superior title and is entitled to possession. As stated by Chief Justice Calvert in State v. Lain, supra:
'On the other hand' * * *
as stated by judge Calvert (page 581 of 349 S.W.2d):
'One who takes possession fof another's land without legal right is no less a trespasser because he is a state official or employee, and the owner should not be required to obtain legislative consent to institute a suit to oust him simply because he asserts a good faith but overzealous claim that title or right of possession is in the state and that he is acting for and on behalf of the state.'
We hold that the evidence supports the trial court's findings and conclusions of law which are to the effect that the defendant public officials were acting as individuals and their action was not that of the sovereign. The trial court held that plaintiffs had title and the right of possession and the State failed to establish an easement by prescription. As pointed out hereafter in more detail in this opinion, we upheld the trial court's ruling. Therefore, the court was correct in overruling the appellants' plea to the jurisdiction.
Appellants filed a plea in abatement contending that the State of Texas was a necessary, proper and indispensable party to this suit and that until the State was made a party the suit should be abated. This too was taken under advisement by the trial court and finally overruled at the conclusion of the evidence. This action by the trial court is the basis for appellants' second point. The judgment here was against the individuals and is predicated upon an incidental determination that title and the right to possession of the land in question is in the plaintiffs and as such is not binding on the sovereign. The Supreme Court...
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