Thompson v. State, 5470.

• Decision Date: 05 October 1942
• Docket Number: No. 5470.,5470.
• Citation: 165 S.W.2d 131
• Parties: THOMPSON v. STATE et al.
• Court: Texas Court of Appeals

165 S.W.2d 131

THOMPSON v. STATE et al.

No. 5470.

Court of Civil Appeals of Texas. Amarillo.

October 5, 1942.

Appeal from Wheeler County Court; D. A. Hunt, Judge.

Highway condemnation proceedings by the State of Texas and others against J. A. Thompson. From the judgment, J. A. Thompson appeals.

Affirmed.

Willis & Via, of Pampa, for appellant.

Clayton Heare, of Shamrock, and Homer L. Moss, of Wheeler, for appellees.

JACKSON, Chief Justice.

This is an appeal by J. A. Thompson from a judgment of the County Court of Wheeler County in favor of the State of Texas acting by and through the commissioners court of said county in condemning 5.91 acres of his land for highway purposes and awarding him $378.52 as compensation for the land taken and the damages to the remainder of the tract.

The appellant challenges the qualification of the county judge to preside over the condemnation proceedings because he was a party plaintiff and the judge before whom the issues were initiated and tried. We find this agreement in the record: "It is stipulated that in the original petition for condemnation D. A. Hunt, County Judge, as a member of the Commissioners' Court was the plaintiff and that he appointed the special commissioners and officiated as trial judge in all the proceedings."

The judge testified that he had no financial interest in the case other than as a taxpayer and as a member of the commissioners' court which was requested to secure the right of way and as trial judge. In Angier v. Balser et al., Tex.Civ.App., 48 S. W.2d 668, Judge Blair of the Austin Court decided this precise question contrary to appellant's contention. A writ of error was denied by the Supreme Court, and further discussion of this contention is unnecessary. See, also, Smith v. Elliott et al., Tex.Civ. App., 149 S.W.2d 1067.

The appellant presents as error the failure of the court to give his requested peremptory instruction because the court was prohibited under the law from condemning for the purposes named land exceeding 100 feet in width.

The proceedings show that the State of Texas maintains a highway known as State Highway No. 152 which traverses Wheeler County and as a part thereof maintains a bridge across Sweetwater Creek; that in order to protect the right of way and bridge from damages from the overflow of the waters of the creek and save expensive repairs it was necessary to acquire new or additional lands to give ingress and egress to the present highway and bridge in order to remove brush, logs and other obstructions from the stream, construct jetties and other improvements to prevent the banks from caving, trees from falling into the stream with logs, brush and debris and damaging the bridge and highway and by such improvements confine the flood waters to the channel of the creek. The record shows that previous to these proceedings the abutments to the bridge had been washed out; the creek banks and trees along the bank had caved in which required expensive repairs; that the purpose of the additional land sought was not to secure a wider highway but secure material with which to confine the storm water to the proper channel of the creek.

Article 6674n, Vernon's Annotated Texas Civil Statutes, in part reads as follows: "Whenever, in the judgment of the State Highway Commission, the use or acquisition of any land for road, right of way purposes, timber, earth, stone, gravel or other material, necessary or convenient to any road to be constructed, reconstructed, maintained, widened, straightened or lengthened, or land not exceeding one hundred (100) feet in width for stream bed diversion in connection with the locating, relocating or construction of a designated State Highway by the State Highway Commission, the same may be acquired by purchase or condemnation by the County Commissioners Court."

As we read the statute the limitation of the acquisition of land not exceeding 100 feet in width is for stream bed diversion and since the State desired this land to enable it to build jetties and such other improvements as were necessary to confine the stream to the channel of the creek to prevent diversion of the water therefrom, appellant's contention is untenable. In Angier v. Balser et al., supra, it is held that a proceeding by the commissioners court condemning land exceeding 100 feet in width for the State highway is not invalid.

Appellant attacks the proceedings and the validity of the judgment because he says fundamentally the State was condemning more land than was needed for the use desired.

There is neither pleading nor proof in the record that the acreage sought was in excess of the necessary amount for use by the State Highway Department in connection with maintaining its highway and protecting the bridge, prevent the banks of the creek from caving and for the removal of trees and other debris from the stream.

If we are correct in concluding that the judge was not disqualified, that the proceedings were not invalid for the reason the State sought to condemn a strip of land in excess of 100 feet in width nor that it was condemning more land than it needed, then the authority of the State to acquire the land for the purposes sought is not questioned. The only issue left for determination is the sufficiency of the consideration paid for the land taken and the damages done to the...