210 S.W. 728 | Tex. App. | 1919
Lead Opinion
This is a suit for the condemnation of 3.44 acres of land owned by appellee for waterworks purposes. It was agreed by the parties that appellant had taken all necessary steps to condemn said land, and that the only issue involved in this case was the value of the same. The commissioners appointed assessed the value of said land at $688. Appellant filed its objection to said award with the county judge, and paid to the clerk'of the county court, for the use of appellee, $688, but instructed the clerk not to I>ay the same to appellee until the termination of this suit. Appellant also deposited with said clerk a like sum of $688, and gave bond as required by statute.
Appellee filed with said clerk his acceptance of said sum of $688, and filed a motion with the county judge that the same should be paid over to him, which motion was denied.
Upon a trial in the county court, there was awarded appellee the sum of $688, from which judgment appellant has perfected his appeal.
It is the contention of the appellee that, by his written statement that he was willing to accept the said sum of $688, the appellant was barred from further prosecuting his suit in the county court.
The rule with reference to condemnation of property for waterworks by cities is the same as that for the condemnation of rights of way by railroads. Article. 1003 to article 1005, inclusive. The statute provides in positive terms that either party may appeal, and it is evident that' it contemplates that the party seeking condemnation may enter upon the land,- pending litigation, by complying with the statute with reference thereto. The plaintiff cannot perfect his appeal without making the deposit to the order of the defendant. If the defendant may defeat such appeal by accepting said money, then the plaintiff is denied the right of appeal, or else must wait until the termination of th» suit in order to'take possession. The objecf of the statute, as shown by its caption, was to enable railroads and other corporations having the right of eminent domain, to enter upon and take possession of the land sought to be condemned pending litigation. Parks v. Railway Co., 34 Tex. Civ. App. 341, 78 S. W. 534.
Appellee has moved to dismiss this suit for want of jurisdiction of the county court, by reason of his willingness to accept the amount of the award made by the commissioners. For the reasons stated, we overrule this assignment.
The trial court charged the, jury as follows:
“(1) In this case you will find for defendant and assess his damages in such sum as you find from the evidence he sustained by reason of the condemnation of the land described in plaintiff’s original petition, and such sum as you may find that defendant and other lands belonging to him sustained, if any, as consequential damages of the condemnation of his land, and the construction of the proposed dam and reservoir upon defendant’s land.”
There is no affirmative error in this charge. It will appear from a reading thereof that no standard is given whereby the damages may be assessed.
The second paragraph of the court’s charge was as follows:
“(2) In arriving at the amount of damages sustained by defendant by reason of the condemnation of his said land and the construction of the proposed dam and reservoir, you will take into consideration any expense, and the value of any lahor necessary in order to restore the improvements on defendant’s said land to as good condition as they would have been, except for the condemnation of his said land and the construction of the proposed dam and reservoir; and you will take into consideration the extent of the injury to the land of defendant, if any, to its use as a homestead for defendant and his family, and the difference between the market value of the defendant’s entire tract of land just before and just after the construction of the proposed dam and reservoir.”'
Appellant, in due season, filed its objection to these charges, and here assigns error as to the second paragraph of said charge, in that it permits a double recovery.
Appellee and several of his witnesses testified that the erection of the reservoir near his house and the cutting off of an irregular shaped piece of land would injure the remainder of his land as a homestead. He and other witnesses also testified that some of his improvements were situated on the land condemned; but no witness testified as to the value of such improvements, what it would cost to restore them, nor to how much in dollars and cents the remainder of his tract was injured for purposes of a homestead.
For the reasons stated, the judgment of the trial court herein is reversed, and this cause is remanded for another trial.
Reversed and remanded.
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Rehearing
On Motion for Rehearing.
We have examined the authorities cited by appellee, and carefully considered the able argument of his attorney on motion for rehearing, but have not been convinced thereby that we were in error in our original opinion herein.
One of the cases cited by appellee is Oregon Electric Ry. Co. v. Terwilliger, 51 Or. 107, 93 Pac. 334, 930. The Constitution of Oregon has two provisions in reference to taking private property for public use. Article 1, § 18, provides that private property shall not be taken for public use “without such compensation first assessed and tendered.” If there was no other provision on the .subject, of course the property would have to be paid for, or the tender refused. Article 11, § 4, provides that—
“No person’s property shall be taken by any corporation, under authority of law, without compensation being first made or secured in such manner as may be prescribed by law.”
In the case above cited the court held that the Legislature of Oregon had “failed to prescribe the manner whereby the compensation of land taken for public use may be ‘secured.’ ” Such being the case, of course payment must have been actually made.or tendered. The appeal was upon an ordinary appeal bond. Our statute has prescribed ample security in such cases.
Russell v. Bush, 196 Ala. 309, 71 South. 397, was a suit by a land agent for commission. The land had been condemned by the United. States, from which there was no appeal. The money was paid, and both parties to the condemnation proceedings were satisfied. The issue was as to whether the broker, who did not effect a lega.1 sale, but brought about the condemnation proceedings, was entitled to commission on the amount paid for the land.
Motion is overruled.