City of Houston v. Plantation Land Company
440 S.W.2d 691
Tex. App.
1969
Check Treatment

*1 6Q1 аppellees’ attorney was notice to va- all by appel- We read cases cited already cate. Mr. Hall had vacated and lants which in effect hold that late where possession. payments appellees had resumed The no- accepted by have been the seller fil- apparently preparatory period tice was to for a sent considerable of time without a ing forfeiture, detainer suit because declaration purchaser forcible apparently claiming should, some a dеclaration Scheumack was after of forfeiture right attempted equitable transfer present case, under Hall. The facts be by place took Hall aft- after default Mr. allowed demand a time to to reasonable voluntarily posses- prevent er by he paying surrendered forfeiture the balance of price. sion. the contract All are dis- cases cited tinguishable them, from this un- case. found that court Mrs. G. P. Sim- der pleading, waiver was relied on. through gave mons Simmons notice M. J. Further, there had been no abandonment fil- of intention fоrfeit the contract purchaser. In them there had been ei- ing the March prior forcible detainer suit ther the erection improvements of valuable 6, 1968. property had otherwise increased in value. attempted The court concluded the trans-

fer Scheumаck was void. violated against assignment found, the covenant without and there is no point the written attacking consent of the seller. of error that finding, attempted assignment Mr. Scheu- conclusion We have reached the mack, which inwas violation the sales that the of thе trial court should contract, was made after abandonment be affirmed the trial on suf because Hall Mr. and as we have noted re-en evidence, ficient found there had been de try by appellees. Mr. Hall had interest no voluntarily fault relin Mr. Hall and he assign. he could quishеd property. While possession Affirmed. express finding appellees that there no finding possession then went into such a presumed there evidence

will be because finding support finding. This ‍‌​‌​‌‌‌‌​​​‌‌​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‍is ex- purchaser had abandoned the point

ecutory of sale. There is no contract find finding. attacking the

of error

ing supports the trial court’s conclusion possession appellees were entitled to HOUSTON, Appellant, CITY OF ap- strongly urged that Appellants have COMPANY, PLANTATION LAND receiving payments late pellees’ action Appellee. declare a waiver of their No. 227. have been appellants forfeiture Mr. keep property since allowed to Court of Civil of Texas. had, posses- suit for after this Scheumack (14th Dist.). Houston filed, the balance of tendered sion was March 1969. price. contract April 9, Denied defense an affirmative Waiver 94, Texas pleaded. Rule that must be did Appellants Procedure.

Rules Civil by con tried plead it and it was not

sent.

given jurisdiction of eminent matters over 10d, Ann. domain. Article 1970-1 Vernon’s say, That is controversies ‍‌​‌​‌‌‌‌​​​‌‌​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‍Tex.Civ.St. scope domain are within judicial power given by Olson, Atty. E. Clifton A. Wm. *3 court, however, may not ex stаtute. The City Spence, Asst. Speir, Fred Senior judicial power juris its ercise that until Houston, Attys. appellant. for required diction the manner is invoked in Burns, Beale, Sears, David Sears & Olsen, Will by (Tex.Sup.Ct.), 360 law. State v. Childress, Childress, Crady, Port & Virgil S.W.2d 398. Houston, appellee. judicial power addition the County thе Law Harris Civil Court at TUNKS, Chief Justice. is, 1, by statute, given No. the cited above 5, 1968, City of the September On jurisdic “administrative and ministerial filed a Statement Condemnation Houston tion” in matters of eminent domain. n with County Court Judge the of the Civil jurisdiction by administrative is invoked the County, Harris Texas. at Law No. 1 of filing, by having power condemnor by property sought acquired The be domain, petition aof for condem fill was a easement ‍‌​‌​‌‌‌‌​​​‌‌​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‍condemnation nation and the form service support The furnish lateral a street. Kunze, City notice. 153 of Houston v. land Planta- question owners of the аre 42, 3264, 262 Article Tex. S.W.2d 947. Company, corporation, and Land tion power The judicial V.A.T.S. of the court proceeding The Hodges. Mrs. Oledia M. timely by eminent domain is invoked the given so filed was the identification filing objection to the award the Special com- “Administrative No. 1759.” spеcial State, commissioners. Pearson v. sworn, a appointed missioners and were 66, 159Tex. 315 S.W.2d 935. 24, and hearing set the for October 1968 question with which pres- we are owners were notice. ented appeal county this May is: the 23, 1968, October the filed a On owners court try the good negotiation faith separate County suit in the Court at Civil separate suit for injunction filed County No. 1 of designating Law Harris the owners, the must issue be tried appointed and Houston com- when county judicial jurisdic- court’s By missioners suit defendants. this tion is filing objection anof sought permanent ownеrs to the Commissioners’ award? prevent the defendants from City Houston, in its statement of of, proceeding with the condemnation, recited all of the facts of, taking possession property under their necessary to invoke the administrative con- identified as Administra- jurisdiction demnation trial upon tive No. The basis including a recitation that it had been sought owners such injunctive relief was agree unable to with as owners to value not, allegation good an that the and damages. sufficiency of the state- faith, attempted to agree with them on thе condemnation, itself, ment of is ques- not land damages value of the petition tioned. The owners’ taking. result from would After is solely based the allegations that the hearing trial court the owners’ City had not negotiated faith before petition temporary injunction. filing its statement. City has appealed. County The Harris Court at Civil Good the con- legislative No. 1 It Law demnor with the land prerequi- court. owner a p. At affirmed. its of Civil exercise of site to condemnor’s trial said: Court power domain. On of eminent evidence finding on sufficient case “ * * * correctly in the stated negotiated not so that the condemnor has statute, that, appellant under brief acquire the will defeat upon the county judge, neither the State, Tex.Civ.App., 405 Lapsley S.W. him, the com- nor statement with ref., 2d n.r.e. regard missioners, with upon hearing 3266, V.A.T.S., provides damages, at into inquire Article Sec. to the the commis- party that a dissatisfied with truth of the facts invoked, can- with that this may objections file but sioners’ award service, in the “thereupon” hearing judge and done until as appeal be tried and determined county “the cause shall court оf *4 county appeal court.” in in the other civil causes the award of commissioners. heard, yet the language suggestive is of conclus- and to be pending Such is now try that, to jurisdiction the the to the motion up ion that the time court’s so in the negotiation, the heard of one of was injunction the dissolve cause, proceed- the the issues of civil the condemnation district judge, objection were, the the award. district ings of as the found regular.” respects legal all and in State, 937, supra, p. the In Pearson v. at Crawford, Tex.Civ. Court, In of Dallas and v. quoting sеctions 6 7 of dismd., 305, in discuss 3266, said, App., 222 S.W. the jurisdiction Art. “The of as to value ing whether special court such matters over necessary filing a before damages was depends upon the Art. 3266 provisions of ** then the under statement condemnation quoted above statute, 6506, Revised Civil Art. effеctive The cause LaFeria Mut. 1911, of Rabb v. said: Court Statutes Co., Tex.Civ.App. Canal 130 S.W. “ ** * nei- It held that has been ref., appeal from an order err. was an commis- county ther the nor the judge temporary injunction a in the dissolving damages sioners to assess appointed Rabb, claiming district to be the court. the state- inquire truth of into the land, trespass a owner tract filed applica- in the ments contained written try against company canal title suit only inquiry tion. Such would company in the district court. canal county court in the on hearing procеeding then filed condemnation in appeal the commissioners.” county Special commissioners court. appointed, hearing were and made held decision the time It true that at objection was filed. an award to which case, in and the Crawford the Rabb case company the district The canal then moved pro- reference different statutes with temporary injunction court dissolve a effect, in domain were cedure previously granted preventing entering its difference, but there no substantial was Rabb, by supplemental рeti- involved, be- relevant to the here question court, alleged filed in that tion the district and the ones now tween those statutes injunction be dissolved be- effect. invalidity cause of the condemnation reason, others, District among Municipal proceeding for the River Water White * * * Walker, Tex.Civ.App., the absence the fact that 370 S.W.2d “of hist., filed and the had been no writ District condemnor landowner Water county proceeding in the agree damages.” unable condemnation hearing was district court. The commissioners dissolved depositеd part appealed. damages awarded and the owner The Court were county filed clerk. The owners On Motions for with suit objections. The then filed owners party Each in this case has filed a alleging that the condem- the district court rehearing. appellant, motiоn for district was invalid because the nation was Houston, that in its has asked motion greater land and a attempting to take more we so as judgment reform Court carry necessary to out interest than was to render in its behalf on the purpose was created. posted by аppellee aas condition to temporary in- The trial court granting junction. The of Civil Court its favor. injunction. reversed and dissolved appellee, required the The trial court said: Court plaintiff post who was there to a bond in undisputed “It $1,000 the condemnation the amount оf as condition to temporary injunction regular were and that which we dis- statutory procedural steps properly appellant, prayer were solved. The in the brief, apparent only carried out. is therefore asked that we not dissolve petition and the sub- the temporary injunction, but also we sequent procedural steps taken were suf- render its favor for the face ficient to request invoke amount of the bond. That *5 County Crosby County hear paragraph Court of based the second of Rule condemnation, 684, and detеrmine the issue of Texas Rules of Civil Procedure which unless paragraph following language: is in the * * * were in fact questions void The temporary “Where the or- restraining presented here be are matters to der or temporary injunction .against litigated in the pending condemnation State, municipality, agency, a a State proceeding.” (Emphasis added). or a subdivision the State in its of governmental capacity, and is By the enactment of the eminent State, municipality, agency, State or statutes, legislature domain estab had govern- subdivisiоn in of State whereby expeditious procedure lished an capacity, ‍‌​‌​‌‌‌‌​​​‌‌​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‍mental has pecuniary interest no possession may quickly property of be in monetary damages the suit and no application public for its use. It would shown, be the bond shall be allowed рolicy be so public inconsistent with the liability sum fixed by judge, expressed in permit the those statutes to applicant shall be its face delay owner to the condemnor’s if restraining amount or tem- order trial, possession property take of porary injunction shall be dissolved in another judicial proceeding, of one of part. whole or in The discretion of very issues for the trial those of which fixing trial court in the amount procedure. provide statutes a subject bond shall be Pro- review. equitable

vided that under circumstances good аnd for cause or shown affidavit hold that the trial erred We rendering otherwise the court granting injunction be temporary may on the recovery bond allow for less try of cause its amount, than its full face the action of properly was not subject court to be to review.” their the landowners’ temporary injunction. suit for injunction temporary The case was one from which re- The the trial court is may monetary damages have sustained temporary or- versed and the which can be In the usual shown. situation purpose dered it is dissolved. requiring a аs a con- appellee’s in rehearing a re- granting dition to the motion to the junction payment disposed lates to is to matters of which we have secure issued, original opinion. party against our whom the monetary damages the amount of the rehearing Both motions are over- injunction, and as a result sustains ruled. costs, injunction is sub event the wrongfully sequently issued held to Bowlen, Tex.Civ. dissolved. Bowlen v.

App., 1 no hist. S.W.2d those

determination of the amount by proper

damages, any, must be made

procedure in a trial court. purpose apparent the second

paragraph require Rule 684 amount, payment in the nature fixed William N. GOULD, Appellant, penalty, only in those situations wrongfully entity governmental al., The CITY EL PASO et Aрpellees. OF monetary damage. enjoined, but sustains no 6006. No. city where might Such exist situation enjoined issuing permit or from Appeals of Texas. Court of Civil enforcing an ordinance. El Paso. April 1969. does not show before us record has has whether the of Houston May Denied monеtary damage because any sustained temporary injunction of the issuance of the *6 has

which we dissolved. If damages, we are of sustained such

not surety

opinion appellee and its liable for necessarily be held

should not face the bond. is obvious amount of would, ‍‌​‌​‌‌‌‌​​​‌‌​‌‌​‌​‌​​​‌​‌‌​‌​‌​‌‌‌‌​‌​‌‌​‌​‌​‌‌‍determining the judge a trial mone to secure

amount bond an

tary en damages, take into consideration

tirely set facts than those different fixing amount consider in

he would payable, of dissolu

of a bond event penalty. Rule injunction, as a

tion of the situation, permits for provide this rendering judge than the less to render equitable cir the bond if

face amount of Thus, the suggest

cumstances such action. amount, any,

determination of the surety appellee and its a matter

held liable its bond is by a trial court

determination original proceeding matter for determination of The trial court’s

Court. is, language of the rule

this matter

itself, subject review. made