Thompson v. Janes

• Decision Date: 08 October 1952
• Docket Number: No. A-3567,A-3567
• Citation: 251 S.W.2d 953,151 Tex. 495
• Parties: THOMPSON et al. v. JANES et al.
• Court: Texas Supreme Court

Page 953

251 S.W.2d 953

151 Tex. 495

THOMPSON et al. v. JANES et al.

No. A-3567.

Supreme Court of Texas.

Oct. 8, 1952.

Rehearing Denied Nov. 12, 1952.

Hardy Hollers, David L. Tisinger and Tyler & Tyler, Austin, for petitioner.

White, Taylor & Chandler and Polk Shelton, Austin, for respondents.

HICKMAN, Chief Justice.

On July 29, 1948, petitioner in his capacity as trustee of the International-Great Northern Railroad Company, filed suit against R. E. Janes and R. E. Janes Gravel Company, Inc., to condemn for a depot site and other related purposes approximately four acres of land in two adjacent tracts situated in the city of Austin. Tract No. 1 contains about three and one-half acres and tract No. 2 about one-half acre. Respondents were unwilling to accept the award of the Commissioners appointed to assess the damages and appealed to the County Court of Travis County. Petitioner appealed from that court's judgment and the case was reversed and remanded by the Court of Civil Appeals. 227 S.W.2d 330. The judgment rendered by the county court on the second trial, awarding damages of approximately $30,000, was affirmed by the Court of Civil Appeals. 245 S.W.2d 718. The latter judgment is before us for review.

On August 10, 1948, the date set for the first hearing by the Commissioners, an order was entered postponing the hearing to September 9, 1948, and reciting that the parties had entered into an agreement (copied in the opinion of the Court of Civil Appeals) which provided that petitioner should take immediate possession of the land sought to be condemned, subject only to the rights of respondents to go upon the land for certain specified purposes until August 21, 1948; and that the land would be valued in all subsequent proceedings as of August 10, 1948. Under that agreement petitioner took possession of the land, erected a depot and other valuable improvements thereon, and is still in possession of the property, using the improvements for carrying on the business of the railroad.

On the second trial of the case in 1951, petitioner presented to the trial court consecutive motions for permission to file first and second trial amendments and a supplemental petition in which he sought to dismiss from the suit all of tract No. 2 and all but .557 acres of tract No. 1. The principal question before us is whether or not the county court erred in overruling these motions, thereby denying petitioner the right to file the trial amendments and supplemental petition.

To support his claim of a right to dismiss as to all of the land except approximately one-half acre, petitioner alleged: (a) that it had been ascertained since the filing of the suit that respondent did not own tract No. 2, and that the City of Austin by ordinance of January 6, 1949, had granted petitioner the right to use that tract; (b) that in spite of due diligence petitioner had discovered since the filing of the suit that respondents did not own approximately three acres in the south part of tract No. 1; and (c) that the parties were mutually mistaken as to the ownership of that portion of tract No. 1 or, in the alternative, if the parties were not mutually mistaken, that respondent Janes had knowledge of his lack of title, and his failure to admit lack of title was a constructive fraud.

Petitioner in his original petition admitted that respondents 'owned, held and claimed' all the land sought to be condemned, but in his trial amendments disputed respondents' title to all but approximately one-half acre. In resisting the motions to file those trial amendments respondents asserted their ownership of the entire four acres, thus raising an issue of title in a court without jurisdiction to try such a dispute. Articles 1906, 1951, Vernon's Ann.Civ.Stats. Petitioner concedes that the county court cannot try title to land, but argues that any issue of title could have been avoided by permitting him to dismiss as to all lands which he claimed were not the property of respondents, and relegating respondents to their right to bring an original suit in the district court to recover title, together with damages for detention by petitioner. Two observations may be made concerning the procedure suggested by petitioner. (1) The agreement by which petitioner took possession of the land, provided that respondents waived their rights to damages for detention. (2) Suppose that petitioner had been granted leave to amend and had condemned and paid for only one-half acre of land, and that in a subsequent suit in the district court respondents had established title to all the four acres or to a portion thereof in excess of one-half acre. Petitioner would then have been in the position of having taken respondents' land under its power of eminent domain without having compensated them for it.

That brings us to a consideration of the basic question of the right of petitioner to dismiss, as he sought to do by the trial amendments tendered for filing. If he had the right to dismiss under the facts of this case, then the question of what cause of action, if any, would have remained in respondents is immaterial. There is no doubt that a condemnor who has not taken possession of the land sought to be condemned has the right to dismiss the suit if the project is to be abandoned or the location changed, for an agency clothed with the power of eminent domain may not be forced to take land against its will. Leonard v. Small, Tex.Civ.App. 28 S.W.2d 826, error refused. Likewise, the condemning agency is accorded the right to dismiss as to a portion of the land when it decides that its purpose may be accomplished with less land than was initially sought. Texas & N. O. R. Co. v. Postal Telegraph Cable Co., Tex.Civ.App., 52 S.W. 108.

In this case, however, petitioner acquired possession of the four acres at the outset of the suit under an agreement with respondents and has not offered to return possession to them of that portion sought to be dismissed. The Court of Civil Appeals recognized that the right of dismissal should not be exercised to the prejudice of the condemnee, a principle expressed in Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, and held that, as a condition precedent to petitioner's right of dismissal, he must restore the status quo by surrendering to respondents possession of the land sought to be dismissed. That holding is supported by authority and we approve it. Witt v. St. Paul & N. P. R. Co., 35 Minn. 404, 29 N.W. 161; Bellingham Bay & B.C. R. Co. v. Strand, 14 Wash. 144, 44 P. 140; United States v. Portion of West Reservoir in Harris County, Texas, D.C., 57 F.Supp. 367. Had petitioner been granted leave to file his trial amendments and supplemental petition, respondents would neither have regained possession of the land which they relinquished to petitioner nor have received compensation therefor. Petitioner's argument that they could have brought a suit in the district court for...