Thompson v. Janes

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRAY
• Citation: Thompson v. Janes, 245 S.W.2d 718 (Tex. Ct. App. 1952)
• Decision Date: 16 January 1952
• Docket Number: No. 9987,9987
• Parties: THOMPSON v. JANES et al.

Page 718

245 S.W.2d 718

THOMPSON v. JANES et al.

No. 9987.

Court of Civil Appeals of Texas, Austin.

Jan. 16, 1952.

Rehearing Denied Feb. 6, 1952.

Tyler & Tyler, Sidney Purser, David Tisinger and Hardy Hollers, all of Austin, for appellant.

Polk Shelton, White, Taylor & Chandler, Q. C. Taylor, H. Grady Chandler and Kerns B. Taylor, all of Austin, for appellees.

GRAY, Justice.

This is a condemnation suit filed by Guy A. Thompson, Trustee for International-Great Northern Railroad Company, appellant, against R. E. Janes and R. E. Janes Gravel Company, Inc., appellees. On a former appeal to this Court the cause was reversed and remanded, Thompson v. Janes, Tex.Civ.App., 227 S.W.2d 330, and this appeal is from a judgment rendered upon a jury's verdict at a second trial.

The purpose of the suit was to condemn approximately four acres of land, in two adjacent tracts, lying within the corporate limits of the City of Austin. Appellant's original petition described the land as first and second tract, gave a field note description of each tract, and made reference to deeds and their records. Appellant alleged that it desired to acquire the land 'for the purpose of the transaction of its business, for its depots, station buildings, depot and station grounds, lights, power, gas, telephone and telegraph lines, for the construction of a water supply, for the right of way, for new and additional rights of way, for change and for relocation of road beds, to shorten its lines and parts thereof, for reduction of its grades and any of said grades for double tracking its railroad, for constructing and operating its tracks, for the construction, maintenance and operation of its depot and station buildings, depot and station grounds, train sheds and switching tracks; and for any and all other lawful purposes connected with operating and running its road and for any and all other lawful purposes necessary to the building, operating and maintaining its depot and station buildings, depot and station grounds.'

Commissioners were appointed and the cause was set down for hearing on March 10, 1948. On this date appellees requested an adjournment of the hearing whereupon an order was entered adjourning the hearing to September 9, 1948, and reciting that the parties had agreed that:

'* * * pending which time Guy A. Thompson, Trustee, for the International-Great Northern Railroad Company, his agents, servants, and employees may go into possession of the subject property with the full consent of the said R. E. Janes and R. E. Janes Gravel Company, Inc., provided that said R. E. Janes and R. E. Janes Gravel Company, Inc. shall have until August 21, 1948 to make such additional exploratory operations and tests to determine the amount and quality of sand and gravel, if any, underneath the lands sought to be condemned, and providing further that said R. E. Janes and R. E. Janes Gravel Company, Inc. have agreed that on August 21, 1948, all personal property and equipment owned or claimed by either of them will be removed from said land and premises; without prejudice to any claim for damages for removal of the same.

'Provided further that the said R. E. Janes and R. E. Janes Gravel Company, Inc. have agreed to in no manner interfere with the possession and use of the property by the said Guy A. Thompson, Trustee, his agents, servants and employees, except in the manner and to the extent above mentioned, that is, in the making of exploratory operations until August 21, 1948 and in the removal of personal property and equipment on or before August 21, 1948.

'Provided further that the said R. E. Janes and R. E. Janes Gravel Company Inc. further agree that the railroad, that is, the said Guy A. Thompson, Trustee, his agents, servants and employees, may have one or more agents or associates present at the time of any exploratory operation and tests and any of such agents, or associates of the railroad shall be furnished or allowed to take samples of the same material as may be taken by the said R. E. Janes and R. E. Janes Gravel Company, Inc., or either of them.

'Provided that, and it is agreed by both parties, that none of the parties have waived any rights asserted in this proceeding or any rights under law except as is herein otherwise stated, and except it is further expressly agreed that the railroad shall suffer no liability for trespass or unlawful entry by reason of the taking possession, the taking of such possession being hereby expressly consented to by R. E. Janes and R. E. Janes Gravel Company, Inc.

'It is further ordered that the parties having agreed hereto that the Commissioners and each of them shall this date view the subject property and the valuation later to be made by the Commissioners shall be as of this date, and the compensation to be paid to the said R. E. Janes and R. E. Janes Gravel Company, Inc., if any, shall be based upon the reasonable cash market value of the land as of this date, and such damages as may be shown on account of the removal of personal property from the land.

'Provided further and it agreed by the parties that this date shall be controlling as the date the property is to be valued, not only with respect to the award, if any of these Commissioners, but same shall be controlling with respect to any subsequent proceeding that might be taken by either party.'

This agreement was signed by the Commissioners and was approved by the attorneys for appellant and for appellees and by appellees. The land was vacated by appellees, appellant went into possession thereof and has made improvements thereon.

The cause was set down for trial on February 19, 1951. On February 13, appellant filed a motion for leave to file its first trial amendment and which trial amendment was attached to the motion as an exhibit. Therein appellant alleged that after the cause was set down for trial it discovered that appellees do not own or have an interest in the second tract of land described in its original petition and sought to dismiss its cause of action as to that tract. It alleged it would require the use of the balance of the land for the uses, supra. This motion was denied, and on February 20, appellant filed its motion for leave to file its second trial amendment. Substantially the same allegations were contained in the second as were contained in the first motion and petition and appellant again sought to dismiss as to the second tract. This motion was denied, and on February 21, appellant filed its supplemental petition wherein it admitted appellees owned the fee simple title to the first tract, and alleged that appellees' interest in the second tract was limited to a mere naked occupancy and claim of right of occupancy. In this petition appellant sought to condemn only an easement for the purposes alleged, supra This petition was stricken on appellees motion.

Appellant's first four points are directed to the action of the trial court in refusing the foregoing motions, striking its supplemental petition, and refusing to permit it to dismiss as to a portion of the land.

By filing its original petition to condemn the two tracts of land therein described, appellant necessarily admitted appellees' title for otherwise the county court would not have had jurisdiction. McInnis v. Brown County Water Improvement Dist. No. 1, Tex.Civ.App., 41 S.W.2d 741, error ref.; Houston Independent School Dist. v. Reader, Tex.Civ.App., 38 S.W.2d 610. After the filing of its original petition, appellant entered into the agreement, supra, and took possession of the lands. This agreement was binding upon the parties to it and, by it, they agreed that the compensation to be paid 'shall be based upon the reasonable chsh market velue of the land as of this date' and the damages resulting from the removal of personal property. Taylor v Tod, Tex.Civ.App., 185 S.W.2d 772, error ref., w. m.

In its trial amendment appellant says in effect that it has discovered an error in the allegation of ownership contained in its original petition. In its supplemental petition appellant abandons condemnation of the fee title and seeks to condemn only an easement. It does not offer to return the possession to appellees nor to reimburse them for the personal property removed therefrom. It did not seek to make additional parties and did not ask that the damages be paid into the registry of the court to await a final determination of any adverse claims. Thus appellant did not avail itself of a remedy to protect itself against claims other than those of appellees. Rabb v. La Feria Mut. Canal Co., 62 Tex.Civ.App. 24, 130 S.W. 916, error ref.

Subject to well established exceptions, a condemnor may dismiss the proceedings at any time prior to confirmation or judgment. Leonard v. Small, Tex.Civ.App., 28 S.W.2d 826, error ref.; Board of Regents of State Teachers' College v. Kelley, Tex.Civ.App., 208 S.W.2d 565. However, the right to correct errors, to dismiss the proceeding and to abandon the purpose of taking the land may not be exercised to the prejudice of the landowner, and such rights may be lost by the taking possession of the property. Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842; Kansas City, M. &. O. Ry. Co. v. Kirby, Tex.Civ.App., 150 S.W. 228, error ref.

By special issue No. 1, the trial court asked the jury to find 'the reasonable market value in Austin, Texas, on August 10, 1948, of the east or first tract of land,' and by special issue No. 2 the jury was asked to find that value 'of the west or second tract of land.' Appellant says this was error because it sought to condemn only an easement over the land, and further says the trial court erred in refusing to instruct the jury that it was seeking to condemn only an easement.

The agreement, supra, fixed the compensation to be paid to appellees and the issues as submitted were in accord with that agreement. Appellant having made the agreement and having...