White v. City of Waco

• Decision Date: 15 April 1943
• Docket Number: No. 2511.,2511.
• Citation: 171 S.W.2d 514
• Parties: WHITE et al. v. CITY OF WACO et al.
• Court: Texas Court of Appeals

171 S.W.2d 514

WHITE et al. v. CITY OF WACO et al.

No. 2511.

Court of Civil Appeals of Texas. Waco.

April 15, 1943.

Rehearing Denied May 27, 1943.

Appeal from McLennan County Court; D. Y. McDaniel, Judge.

Proceeding by the City of Waco to condemn land for an airport, wherein Mrs. Susie E. White and others filed a cross-action claiming that they were entitled to a portion of the fund awarded and retained in the registry of the court. From a judgment, Mrs. Susie E. White and others appeal.

Reversed and remanded.

Bryan & Maxwell, of Waco, for appellants.

Geo. W. Morrow, City Atty., and W. L. Eason, both of Waco, for appellees.

HALE, Justice.

The City of Waco instituted this proceeding in the exercise of its right of eminent domain by filing with the County Judge of McLennan County a written statement in literal compliance with the provisions of Article 3264 of Vernon's Tex.Civ.Stats. It sought to condemn three tracts of land for use as a municipal airport. The County Judge appointed commissioners, who, after notice to the owners and a hearing thereon, filed their award on May 19, 1941, assessing the damages to the first and second tracts together at $16,210.40, and to the third tract at $1,466.44. The award recited that Frank Washington and wife, Susetta, and First National Bank of Waco were the owners of the third tract, that Washington and wife were the owners of an undivided one-half interest in the first and second tracts, to whom damages were awarded in the sums of $1,466.44 and $8,105.20, respectively, but that the commissioners were unable to determine the respective interests of the owners of the other one-half of the first and second tracts, and that by agreement of the parties no apportionment of damages was made as to such interests.

On May 29, 1941, Frank Washington filed his objections to the award, in which he stated specifically that he did not object to the condemnation of the property, to the amount of the damages assessed, or to the decree that he be paid one-half of the damages to the first and second tracts and all of the damages to the third tract, but that he did object to that portion of the award in which it was recited that the commissioners were unable to determine the respective interests of the parties to the other one-half of the first and second tracts, it being his contention that all of such damages should be awarded to him. No other objections having been filed, the City of Waco paid the entire amount of the damages assessed against it into the registry of the court on May 30, 1941. Thereupon the County Judge entered an order directing the clerk to pay over to Washington, his wife, and the First National Bank of Waco the sums specifically awarded to them, which was accordingly done, thereby leaving a balance of $8,105.20 in the registry of the court. Such proceedings were all had and done in conformity with the requirements of Title 52 of Vernon's Tex.Civ.Stats.

On August 28, 1941, Mrs. Susie E. White and others filed their answer to the objections of Frank Washington, in which they sought to abate such objections on the ground that the County Court had no jurisdiction to determine the issues therein sought to be raised. Subject to the action of the court on their plea in abatement, they asserted by way of cross-action that they were entitled to a portion of the fund retained in the registry of the court. The case was tried before the court without a jury and resulted in judgment (1) vesting title to the three tracts of land in the City of Waco for use as an airport, (2) confirming the payment of $17,676.84 into the registry of the court by the City of Waco in full satisfaction of the damages assessed against it, (3) confirming the payment by the clerk to Frank Washington, his wife, Susetta, and First National Bank of Waco of the sums of $1,466.44 and $8,105.20, respectively, and (4) awarding the balance of $8,105.20 in the registry of the court as follows: (a) to Frank Washington $4,305.16 as the value of his life estate in one-half of the first and second tracts; (b) to Myrtle Washington Tate $2,682.23 as the value of her life estate in said property; and (c) to Mrs. Susie E. White and others in equal portions $1,117.81 as the value of their interest as remaindermen in said property. From this judgment Mrs. Susie E. White and others have perfected their appeal to this court.

The first point in appellants' brief is: "The matter in controversy was not within the jurisdiction of the County Court for the reason that it was a suit for title and possession and the distribution of a sum in excess of One Thousand ($1000.00) Dollars." They assert that the suit was actually one for title, possession and distribution of the $8,105.20 in the registry of the court as between the claimants to the fund, and that the City of Waco is not concerned in the appeal, it being a party pro forma only.

Frank Washington was born June 18, 1879. The first and second tracts consisted of 184 acres, was the community property of Washington and his first wife, Elizabeth, and constituted their homestead. Mrs. Myrtle Washington Tate, their daughter, was born February 27, 1910. Elizabeth Washington died on November 28, 1935, leaving a will which was duly admitted to probate in the County Court of McLennan County, by the terms of which she appointed her husband independent executor and devised to him a life estate in her undivided one-half interest in and to their community property and subject thereto she devised a second life estate in the property to her daughter, with remainder share and share alike to her sisters and brothers who are appellants herein. It was agreed on the trial that a person 62 years of age has a life expectancy of 12.86 years, and that a person 31 years of age has a life expectancy of 34.63 years.

As we view the record, there has never been any bona fide dispute among the parties as to the title to the 184 acres, or as to the undivided interest which each of the condemnees owned therein. The difficulty in apportioning the damages arose solely by reason of the controversy among the parties as to the value of their respective interests in the land and the manner in which the damages sustained by each should be arrived at. It was and is the contention of Frank Washington that since he was independent executor of the will of his deceased wife and owned a life estate in one-half of the 184 acres, the entire amount of the damages should have been awarded to him to be used during his lifetime in accordance with the terms of the will of his deceased wife. On the other hand, it was and is the contention of appellants that the only right of Washington in and to the fund was the present value of his life estate in the land, computed on the basis of his life expectancy and a reasonable rate of interest and discount. They also contend that the present value of the life estate of Mrs. Myrtle Washington Tate should have been calculated in like manner and that, after payment from such fund of the value of the two life estates thus computed, the balance thereof should have been awarded to them as remaindermen under the will of their deceased sister. No question is here raised as to the validity of the judgment appealed from except insofar as the same makes disposition of the $8,105.20 now in the registry of the court below.

Since each step taken in the proceedings up to and including the filing of their answer by appellants on August 28, 1941, was in conformity with the requirements of Title 52 of Vernon's Tex.Civ. Stats., we are of the opinion that the County Court properly acquired jurisdiction generally over the matter in controversy, even though the same did involve the present worth of life estates in land and the distribution of a sum of money in excess of $1,000. Gulf Coast Irrigation Co. v. Gary, 118 Tex. 469, 14 S.W.2d 266, 17 S.W. 2d 774; Hill v. City of Bellville, Tex.Civ. App., 30 S.W.2d 407; Vogel v. State, Tex. Civ.App., 50 S.W.2d 348; Cook v. Ochiltree County, Tex.Civ.App., 64 S.W.2d 1018; Houston North Shore R. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508. Having acquired jurisdiction generally over the subject matter in controversy, we think the County Court was also vested with judicial power and authority under the express provisions of Title 52 of the statutes to determine in this proceeding the value of the interest which each condemnee owned in the land condemned, and to apportion among them separately the damages which the commissioners had awarded to them collectively. City of Paris v. Tucker, 101 Tex. 99, 104 S.W. 1046; Rabb v. La Feria Mut. Canal Co., Tex.Civ.App., 130 S.W. 916, error denied; Walsworth v. San Antonio & A. P. Ry. Co., Tex.Civ.App., 10 S.W.2d 194; Missouri-Kansas-Texas R. Co. v. Jones, Tex. Com.App., 24 S.W.2d 366; Hardy v. City of Throckmorton, Tex.Civ.App., 62 S.W.2d 1104.

The second point in appellants' brief is: "The court erred in its judgment wherein it assumed as a matter of law that six per cent was a reasonable rate of interest and discount, in that such finding was contrary to the only evidence introduced thereon in the trial, for the reason that the only evidence as to the reasonable rate of interest and discount was from three to three and one-half per cent." They assert that the judgment was therefore excessive in its awards...