*1 rеspective interests in quantum of their not relieve did possibility land but its rights with duty to assert at their diligence arriving reasonable
respective maturities. that, it is clear what we assign- appellants’ оpinion, none our judg- presents reversible error.
ments will therefore below ment of the court
affirmed. . ux. DERBY HOUSTON OF
CITY 12023.
No. Appeals Galveston. of Texas. of Civil
Court 2, 1948. Dec.
Rehearing Dec. Denied Sears, City Atty.,
Will and W. W. Moore, Jr., Johnson, 'and Asst. Joe appellant. Attys., all o-f ¡B. Hightower M. and Thomas Weath- (Vinson, Elkins, erly, both of Houston Weems & the owners of the bеtter of the land or brought by appellant, City of for it had been unable to ed in Expressway. opposition County, Commissioners, This was CODY, Justice. appellee. laying known as the alleging Francis, County a out portion a condemnation Appellees and among Court at property, upon of award damages, Interurban of Houston, agree Galveston-Houston appellees’ duly filed Law of Harris with of that things proceeding Boulevard, appellees, the value Houston, counsel), proceed- Special this for ' w “Price: « * “Interurban highway (Subject [*] * * * * * * * * * * * * * * * * [*] [*] [*] [*] $4843.50 Land 7000.00 1906.50 [*] [*] 250.00 Trees Project « *2 Super- Council Improvements " ion Lot 16,145,sq. southerly Subd Approval) ft. side of ivis off F- J-DeMeritt proceeding' brought is under The instrument Mr. was executed the State Revised Civil Statutes of appellees. “agent,” Nisbet аs Texas, Chapter of Title of said 29, 1?47, appellee, On October IT. L. Statutes, Vernon’s Ann.Civ.St. arts. 3264 Derby sent letter following Mr. seq., seq., 1201 et the Charter Nisbet: provi- pertinent and all other “Houston, Texas sions of law. “October value the market Nisbet, jury, Agent In a trial to “Mr. Luther M. a $11,162.31, at Acquisition Department assessed “Land the land taken was damages resulted no “City and it was -found Hall taken. “Houston, land which -awarding ap- Court’s Sir: “Dear $11,162.31, sum of aforesaid I have not information that “I prosecuted. this on the 16145 the full received F. square Lot 11 of Demeritt feet of appeal, purpose -this we dеem J. For the purpose acquired for the sub-division to be a sufficient statement following to be Super Highway. of facts: $7,000.00 “Your offer of 1947, Luther M. part of latter n approvalof rejeсted. Council way agent the Land truly, “Yours solely upon Division, Acquisition acting “H. Bobbitt, Superin- of W. H. “6615 Urban Street.” i-n (who said Division turn
tendent of tried, upon appellees Public orders of the Works day -the the case was City Houston), made in- requesting the court to Department filed a motion -City at resi- for not to mention trips to struct counsel several see jury before part of the tract dence, whioh was _pn here involved, fact the aforesaid purpose negotiat- way elicit the -the or for property here get ing with this mo- City. The sustained -court City. On October -the for involved thrоughout pro- rulings tion, agreement, his signed an he and and. action consistent reads as follows: were part get unable motion, and undersigned owner or owners “The appellees. madе by the offer jury before following land to appellees signed -the shown the time the terms At Houston to, the Council of agreement. public compensating passed any Houston use aсquisi- the owner provision re directing resolution motion therefor. But the use, ferred to ade tion forbids such a taking quate and, indicated, negotiating with being fur as *3 provides taken, except thеr under the pellees, Mr. Nisbet that when State, the use to above. of the such shall by first be made or a de secured predicates Appellant appeal its posit money. The exercise of such a points, namely, three necessary power, but one which could be by agreement signed ap- I. The the very be, oppressively, exercised ought to accept for the offering to $7000.00 very is, strictly regulated. provisions by land appellant taken an admission 3264-3271) R.C.S. cover (Arts. interest as to the value of such the first of eminent domain. land and compromise. was not an provides in effect that section Art. 3264 II. The court in erred to allow refusing party private.prop -to desiring the condemn appellant appellee exаmine to H. L. public purpose for a can institute as to the execution the agreement only and in excluding testimony that his failed to on with the owner the wife, appellee Derby, Alma agreed had of the the land or amount the dam accept to for the land. ages. City order for to the vest the III. court erred per- to refusing county jurisdiction court with condemn to aрpellant mit the to examine the witness land, allege, it had to first Nisbet as to the surrounding circumstances then during prove, the proceedings that it signing agreement the by of the ap- the had to аgree with the failed pellees, and in testimony. excluding his the value of their land to be taken. Isaac points City Houston, complain v. three Tex.Civ.App., 60 S.W. way one 2d 543. another the exclusiоn of agreement evidence of the ap- opinion trial court of the pellees signed not because the sell to land accepted ap been City, was an offer made pellant before it was withdrawn and thus by negotiations during the owners contract, had become a but it was because requires pre as a which the law condition an admission against intеrest. We over City right cedent to the to institute points. rule the proceedings, and that condemnation City The contention of the on this to offer sell their comes to this: That where hence, offer, compromise awas (cid:127)pellees, negotiations during the instituted it was not admissible in that evidence of (cid:127)by acquire land, their made an proceedings over their sell the lаnd for was objection. very respectable There is au City, accepted .not was an states, thority from where admission their interest raised, supports his view. $7000, and it only worth that was land was Eby, St. Louis and K. R. Co. v. See admit, the court not reversible error for 472; 606, Chicago 152 Mo. 54 S.W. E. & onthe proceedings, Ry. Bishop Chicago, Co. v. S. Catholic. had offered the Indianapolis Ill. N.E during negotiations for $7000.00 Dunn, Ind.Aрp. Northern Traction proceedings. to the condemnation} 248, N.E. No have been cited point has not been raised in 'The Texas be- d jurisdictions from other which hol fore. prices during evidence of the Except for Section 17 are negotiations, to be held I, of Rights, -Bill Art. precedent -of Texas Con as a condition institution St., Ann. stitution, Vernon’s State are admis private sible, to take party prop would making same, the condemnation hearing negotiations instituted acquire because passed reso- by owners Whether or not offers acquisition lution or mоtion directing the party property to a land by public purpose. e for a desiring (wher the offeree And in that cites connection to condemn the additionally the case оf Kaufman v. Pitts- accept owners) it does burgh, Co., C.& W. R. 210 Pa. dispute arc offers A. 2. word, strict sense of the need not be decid ed. It is the evident of the law intention We refrained original parties shаll have the free fullest opinion from discussing the obvious ad *4 negotiate prior dom to to the institution vantage corporation, which having proceedings of condemnation to thе end that power condemnation, acquiring they may agree price. Unless owner, land from an prospective over other negotiations were prejudice, there purсhasers. An is made to a not be party, could such freedom. The hav prospective purchaser, which does not have power ing the to condemn the land power of condemnation, can with be owner does not make an offer which is by the offerer offerer drawn because the it, satisfactory in a itself. class any possible low considers too requirе lengthy This is too obvious prejudice certainly to the offerer. It was ex demonstration. The same reason for intended law to cluding offers evidence corporation, invest a or arm of the State ordinary requires the exclusion domain, of eminent with the power negotia offers power to obtain a-noffer of sale be used tions which are to be conduсted of a land owner in beat ;of prior to the institution condemnation ing price. down the namely, unnecessary liti property to 'sell the Besides, gation may be obviated. the. was not an regulating visions Title the exercise to sell the property party. third some eminent domain is a com It was an offer to sell the plete system in itself. R.C.S. Art. 3267 City to be used for a purpose, onе provided shows that the law has the effect for which subsequently condemned given shall be offers made acted on. it. It was withdrawn before the institution proceed of condemnation indеpendent of We cannot hold that it was ings. only purpose for which the which were during negotiations can be sums was withdrawn. instituted when 'Said offer looked to is determine how the costs -protеction law erected shall be cast. for the benefit of the citizen as affirmed, must be and it is' power the exercise of so ordered. liberally should be construed. Stated other Affirmed. wisе, of eminent domain must strictly corpora be construed those Rehearing. Motion for tions and arms of the State vested there Appellant strongly objects to the sum- with. holding case Our is not сon original opinion mation made in our trary to our holding Isaac v. before us for decision. It Houston, supra. So far as we understand strongly insists that holding under our evidence, the fact that with Isaac v. Tex.Civ.App., drew their offer of resxdt-ed in the 60 S.W.2d it could not held to sell $7000, City’s agent Nisbet, rehearing The motion for is refused.