Susholtz v. City of Houston, 1250-5630.

• Decision Date: 01 April 1931
• Docket Number: No. 1250-5630.,1250-5630.
• Citation: 37 S.W.2d 728
• Parties: SUSHOLTZ et al. v. CITY OF HOUSTON.
• Court: Texas Supreme Court

37 S.W.2d 728

SUSHOLTZ et al. v. CITY OF HOUSTON.

No. 1250-5630.

Commission of Appeals of Texas, Section B.

April 1, 1931.

Error to Court of Civil Appeals of First Supreme Judicial District.

Condemnation proceedings by the City of Houston against Mrs. Rosa Susholtz and others. To review judgment of Court of Civil Appeals [22 S.W.(2d) 537] reversing and remanding judgment on appeal from an award of commissioners, plaintiff brings error.

Judgment of Court of Civil Appeals reversing judgment of county court affirmed.

Allen B. Hannay and C. A. Teagle, both of Houston, for plaintiffs in error.

Sam Neathery, City Atty., Fulbright, Crooker & Freeman, Sewall Myer, J. H. Painter, and Sidney Benbow, all of Houston, for defendant in error.

RYAN, J.

This is a proceeding filed by the city of Houston, in the exercise of its right of eminent domain, on January 23, 1925, with the county judge at law, for the condemnation for street purposes of a certain tract of land lying on Buffalo Drive within the city, owned by Mrs. Rosa Susholtz and others.

The judge appointed three commissioners to assess the damages, and they, on February 11, 1925, filed their award, assessing such damages at the sum of $1,800, the city to pay all costs of the proceeding.

On February 18, 1925, the city filed its appeal from such award, to the county court deposited with the clerk of that court the sum of $3,600 as double the amount of the award, and took possession of the property. The city did not then pay the costs incurred before the commissioners, but did so afterwards on October 26, 1928, before the trial in the county court. The city did not, at any time, give any bond to secure any other costs that had accrued or might accrue.

In the county court, where a trial de novo was had, the city contended that the measure of damages should be fixed as of the date it took the possession, but the court held that because the city had not given bond to secure the costs and had not then paid the costs accrued up to the time it took possession, its entry was unlawful and the measure of damages should be fixed as of the date of the trial, on November 27, 1928.

The trial court therefore submitted the cause to a jury upon the single issue: "What do you find to be the reasonable cash market value of the property in question on the 27th day of November, 1928?" The jury returned an answer of $27,150, and the county court rendered judgment against the city for that sum.

On appeal, the Court of Civil Appeals found that the city's entry was lawful and the measure of damages should be fixed as of the date of such entry, and accordingly reversed the judgment of the county court and remanded the case for another trial. 22 S.W.(2d) 537.

The only question before us is whether or not the entry of the city upon the land in controversy, after depositing the requisite amount of money with the county clerk, was rendered unlawful by reason of the fact that the city did not deposit a bond to secure any costs which might be adjudged against it in the court below or upon appeal.

The power of eminent domain was conferred, by the Legislature, upon the city of Houston by the Special Acts of the Twenty-Ninth Legislature, 1905, c. 17, and the manner of the exercise of that power is therein provided in article 4, § 2, of the city's charter, which is as follows: "To effect a condemnation, the same proceedings shall be taken and the same statutes shall govern, so far as applicable, as obtain and apply to the condemnation of lands by railway companies under the general statutes of the State of Texas."

From this provision of the acts of the Legislature it will be seen that the general statutes regulating condemnation of property by railroads were adopted into the charter of the city of Houston, in so far as applicable. They were not adopted in toto, as is the impression left by a cursory reading of the argument filed herein by plaintiff in error.

Article 9, § 8, of the same act of the Legislature provides as follows: "It shall not be necessary in any action, suit or proceeding in which the City of Houston is a party for any bond, undertaking or security to be demanded or executed by or on behalf of said City in any of the State courts, but all such actions, suits, appeals or proceedings shall be conducted in the same manner as if such bond, undertaking or security had been given as required by law, and said City shall be just as liable as if security or bond had been duly executed."

Therefore the laws relative to the condemnation of land by railroads shall be applicable to condemnation proceedings by the city of Houston in so far as they do not conflict with other provisions of the charter of the city of Houston, as enacted by the Twenty-Ninth Legislature. Clearly this statute is in conflict with article 9, § 8, of the same legislative act, wherein it is provided that the city of Houston shall not be required to execute any bond, undertaking or security in any proceeding in any state court, but that the proceeding shall be conducted as if the bond had been given as required by law. This section not only exempts the city from giving a cost bond, but it is all inclusive by its terms and provides, in effect, that if any such bond is necessary under the statutes, although none is furnished by the city, such proceedings shall be conducted in the same manner as if such bond had been given as required by law.

The provision requiring railroads, as a prerequisite to entry on property sought to be condemned,...