Wooten v. State

• Decision Date: 12 January 1944
• Docket Number: No. 8155.,8155.
• Citation: 177 S.W.2d 56
• Parties: WOOTEN et al. v. STATE.
• Court: Texas Supreme Court

177 S.W.2d 56

WOOTEN et al. v. STATE.

No. 8155.

Supreme Court of Texas.

January 12, 1944.

Rehearing Denied February 9, 1944.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Condemnation proceeding by the State against Joe S. Wooten and wife. A judgment of the county court condemning the land and assessing damages was affirmed by the Court of Civil Appeals, and the defendant landowners bring error.

Judgments of the Court of Civil Appeals and County Court reversed and proceeding dismissed.

Frank O. Ray, of Alpine, and Thomas B. Greenwood, of Austin, for plaintiffs in error.

Gerald C. Mann, Atty. Gen. (former) and Frederik B. Isely, Asst. Atty. Gen., for the State.

J. Edward Johnson, of Brownwood, for Parks Board.

SMEDLEY, Commissioner.

This is a proceeding instituted by the State of Texas, respondent, against petitioners, Joe S. Wooten and wife, for the condemnation of two tracts of land in Brewster County, to be used as a part of Big Bend National Park created by legislative enactment in 1939. Acts Regular Session, 46th Legislature, pp. 520-525, Vernon's Ann.Civ.St. 6077e. Judgment rendered by the county court condemning the land and assessing petitioners' damages for the land taken at $400 was affirmed by the Court of Civil Appeals. The opinion of that court has not been published.

The principal question presented is as to the sufficiency of the description of the land sought to be taken. In the statement in writing filed with the County Judge which is the petition for condemnation, Art. 3264, Revised Civil Statutes of 1925, in the decision and award made by the commissioners and in the judgment rendered by the county court, the two tracts of land are thus described: "Situated in Brewster County, Texas and described as follows: The North part of Tract No. 10, Section 13, Block G-17, H. P. Melton Survey, containing 60 acres of land, more or less, and the North end of Tract No. 10, Section 11, Block G-17, Thos. F. Main Survey, containing 140 acres of land, more or less, aggregating the total sum of 200 acres of land, more or less."

Petitioners contend that because this description wholly fails to identify the land sought to be condemned, neither the commissioners nor the county court acquired jurisdiction in the proceeding.

Section 1 of Article 3264 of the Revised Civil Statutes of 1925, as amended (Vernon's Annotated Civil Statutes, Article 3264, Sec. 1), provides that the statement in writing required to be filed by the party desiring to condemn real estate "shall describe the land sought to be condemned". It has been held that "if this be not so done as to identify the land to be taken, the jurisdiction of the tribunal having power to condemn never attaches". Parker v. Fort Worth & D. C. R. Co., 84 Tex. 333, 19 S. W. 518, 519. It is held further in that case that the certainty required in the description of the land in a condemnation proceeding "is of the same nature as that required in conveyances of land, so that a surveyor could go upon the land and mark out the land designated". See also Roberts v. County of Robertson, Tex.Civ.App., 48 S. W.2d 737, application for writ of error refused.

The rule as to the description in a deed, often quoted, is thus stated in Norris v. Hunt, 51 Tex. 609, 614: "The true rule, as deduced from the authorities, seems to be that the description should be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty". In Harris v. Shafer, 86 Tex. 314, 23 S.W. 979; Id., 86 Tex. 314, 24 S. W. 263, the order of confirmation and the deed in an administrator's sale described the land sold as "1,800 acres of land, `it being the upper part of the survey'". The court held that the sale was void because the description in the order of confirmation and in the deed was "wholly insufficient, and in fact no description, furnishing no means by which the land intended to be conveyed can be located at any particular place in the survey". Similarly, in Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, a mineral deed was held void for uncertainty in description. It described the land by quantity and as being a part of a larger tract and contained nothing to identify the specific portion of the larger tract intended to be conveyed. See also Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380; Brown v. Gaines, Tex.Civ.App., 131 S.W.2d 801, application for writ of error refused.

The petition, the commissioners' award, and the judgment in this case contain no descriptive data for identification of the land sought to be condemned save that above quoted. The one tract is described as the north part of Tract 10, Section 13, Block G-17, H. P. Melton survey, containing 60 acres of land, more or less; and the description given of the other tract is that it is the north end of Tract 10, Section 11, Block G-17, Thos. F. Main survey, containing 140 acres of land, more or less.

Respondent disregards the words "more or less" used in the description of the two tracts and treats the descriptions as if they read: "The north part of Tract No. 10, Sec. 13, etc., containing 60 acres of land", and "the north end of Tract No. 10, Sec. 11, etc., containing 140 acres of land". It is argued that these descriptions are sufficiently definite because a surveyor could go upon the ground and mark off the north 60 acres of Tract No. 10 in Section 13, and the north 140 acres of Tract No. 10 in Section 11. The authorities upon which respondent relies are cases that have...