Wilemon v. City & County of Dallas Levee Imp. Dist.

• Citation: 264 S.W.2d 543
• Decision Date: 16 December 1953
• Docket Number: No. 4975,4975
• Parties: WILEMON et al. v. CITY & COUNTY OF DALLAS LEVEE IMP. DIST. et al.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 543

264 S.W.2d 543

WILEMON et al. v. CITY & COUNTY OF DALLAS LEVEE IMP. DIST. et al.

No. 4975.

Court of Civil Appeals of Texas, El Paso.

Dec. 16, 1953.

Rehearing Denied Jan. 6, 1954.

Bonney, Paxton & Wade, Herbert S. Paxton, Jr., Dallas, for appellants.

Bowyer, Gray, Thomas, Crozier & Harris, Scurry, Scurry & Pace, Dallas, for appellees.

McGILL, Justice.

This was a suit in trespass to try title to an acre of land, more or less, alleged to lie in the river bed of the Old Trinity River Channel in Dallas County, and for a mandatory injunction requiring defendants to remove certain improvements and fill placed on said land, and for an injunction to prevent defendants from placing other improvements thereon. Trial was to a jury, but at the close of all the evidence on motion of plaintiffs the court withdrew the case from the jury and found that the State of Texas was the fee simple owner of the land, subject to the right of use and possession thereof for flood control and reclamation purposes of plaintiffs, and granting plaintiffs such right, use and possession against defendants, and also the injunctive relief prayed for. Appellees were plaintiffs in the trial court and appellants were defendants. A further statement of the nature of the suit is deemed necessary at this point. The following appears from plaintiffs' petition:

'(1) Plaintiffs are each governmental agencies created by the Legislature in accordance with the Conservation Amendment (article XVI, Sections 59a and 59b) of the Constitution (Vernon's Ann.St.) of this State.

'(2) That in accordance with the statutes, a 'Plan of Reclamation' for the City and County of Dallas Levee Improvement District was approved by the State Reclamation Engineer, the Board of Supervisors of the District, and was filed for record on November 6, 1926.

'(3) Said Plan of Reclamation provided for a change in the course of the channel of the Trinity River as the same existed at that time and the straightening thereof along a new channel constructed between the levees, and provided for a storage basin and area in the old channel of the Trinity River, as indicated on the District Map, referred to and made a part thereof.

'(4) That said Plan of Reclamation provided and contemplated the continuing use of said old channel for channel and conduit purposes to carry water from creeks, storm sewers and other conduits to the sluice gates and pumping plants, and that the same was and is a necessary and requisite part of the Plan of Reclamation of the lands lying within the District.

'(5) That the meander lines of the old Trinity River Channel and storage basin were contained in the Report of the Commissioners of Appraisement.

'(6) The defendants own a tract of land adjoining the channel which was described by metes and bounds and the Defendants erected and constructed and caused to be erected and constructed fill, dirt, obstructions and improvements as shown and indicated on the maps and plat attached to the Plaintiffs' Petition and marked Exhibit 'A'.

'(7) That such encroachments constitute a serious interference with the channel storage facilities and area, to which Plaintiffs, under the Constitution and laws of this State have the exclusive right to the possession and use thereof.'

Defendants answered by way of general denial and to the effect that under Article 7467b, R.C.S., Vernon's Ann.Civ.St., they claimed some right or interest in the land and stand ready, able and willing to comply with the provisions of said Article in order to perfect their title to the land; that on or about the 23rd day of March, 1949, the defendants placed valuable improvements on the land in good faith and expended therefor approximately $36,000 and that the plaintiffs had notice thereof but failed to prohibit them from placing said improvements, to the defendants' damage in said sum.

Plaintiffs filed their motion for summary judgment with supporting affidavits, and defendants answered said motion with supporting affidavits, and answered further with a formal 'Not Guilty' plea and with affirmative allegations that the land in controversy was not in said river bed, but belonged to the defendants and was a part of the adjoining land which admittedly belonged to the defendants, and claiming damages for improvements placed on said land in good faith, in the alternative.

The court below entered an order on July 30, 1952, sustaining the motion for summary judgment as to all questions except the boundary line between the disputed property and that admittedly owned by defendants, to which action of the court defendants duly excepted.

By appropriate points appellants contend (1) that the Court erred in entering its order dated July 30, 1952, sustaining plaintiffs' motion for summary judgment in all respects except as to the question of boundary of the land in dispute; (2) erred in failing to enter judgment at the conclusion of the trial that plaintiffs take nothing; (3) erred in withdrawing the case from the jury and entering judgment against defendants without submission of fact issues to the jury; (4) erred in holding in its judgment that the State of Texas was the owner of fee simple title to the land in controversy; (5) erred in holding that plaintiffs were decreed the right to use and possession of a tract of land, the same not being described by exact metes and bounds; (6) erred in issuing its mandatory injunction requiring defendants to remove an indefinite amount of fills and indefinite improvements, identified only as 'that fill' and 'those improvements' which defendants placed on the land in controversy; and (7) erred in neither allowing defendants nor submitting to the jury damages for improvements placed on the land in controversy in good faith by them. The following background of facts relevant to the present controversy is admirably stated in Cox v. City & County of Dallas Levee Improvement Dist., Tex.Civ.App., 258 S.W.2d 851, 854, (wr. ref. n. r. e.):

'City and County of Dallas Levee Improvement District and Dallas County Flood Control District are bodies politic and corporate pursuant to Acts of the Legislature and Sec. 59(a), Art. 16, State Constitution, Vernon's Ann.St.; and were created as such for the purpose of constructing and maintaining levees and other improvements necessary for reclamation of lowlands subject to periodic overflow of the Trinity River adjacent to the City. In accordance with provisions of the Constitution and Statutes a Plan of Reclamation was approved, adopted, and filed for record Nov. 6, 1926 covering some 10,500 acres of land lying within Levee District boundaries and under which Plan the course of the Trinity was changed, straightened, and placed between levees; and the old channel set aside for drainage and conduit purposes and the storage of storm waters. At the same time a survey of the old channel was ordered by the Levee District and its Commissioners of...