*1 legal holi- dates enumerated days Article 4591 are declared banking purposes. May in either 30 is mentioned legisla- existing 4591d, is no Article 4591 or Article and there holiday. commonly that the observed as tive declaration same application interpreted in the Blackman case of Rule 4 as light force, reasonably statutes then certain in interpretation this is now will not be true if extended recognized by any day year include in the which has been ever Legislature general acceptance. holiday by popular as a In opinion, go far, our it would be unwise Appeals is answered submitted the Court of Civil designated negative. statutes, present days our Under legal holidays meaning are Rule 4. within the Opinion delivered December 1959. Producing Company et al v.
Coastal States Gas Honorable Judge Miller, H. District et al. John No. 1959. A-7329. Decided October Rehearing Overruled December (329 853) 2d Series *2 Kelley, Looney, Edinburg, Littleton, Hart and McLean & of Hart, Austin, Hart, relators. & and James P. all of for
Strickland, Wilkins, Harry Hall, and L. all of Hall Mills and Mission, respondents. for opinion of the Court. delivered
Mr. Justice Hamilton petition This matter us in of comes before the form Producing writ of mandamus filed States Com- Coastal Gas pany, corporation, Drilling Company, partner- Harrell and ship, relators, respondents, complaining the Honorable John of sitting Judge H. Miller of 93rd District Court as Judicial Hidalgo Texas, County, Bannworth Arthur and Harold Bannworth, Hidalgo Texas, County, requesting that residents of judge the said district to fix and be ordered and commanded payment may proper determine the which any damages pleading that be assessed on relators’ District condemnation Cause No. B29054 said 93rd Judicial Hidalgo respondents County, Texas, and that said Court permit authorize relators commanded ordered registry deposit so said the sum fixed and determined court, being deposit made the said district said respondents grant and ordered to relators be commanded petition to take of the described court, except tract as to No. in said cause said district appears suit. It relators dismissed their to which 30, 1959, plaintiffs January in said cause filed relators as declaratory petition and for in said court their condemnation, complaining of said judgment and Harold as defendants. Said Bannworth and Arthur Bannworth petition counts, as follows: contained substance three 10, 1958, count, allege
In the first that on March into an Land of the of Texas entered General Office State oil, Drilling gas, Company, and mineral which lease with Harrell said lease and is recorded was filed for record on March 214, Page 322, in Volume Lease Records of and Gas Oil Hidalgo Drilling County, Texas; subsequent thereto Harrell Company assigned part in said lease and transferred a interest assign- Producing Company, to said which Coastal States Gas Page ment of record in Volume Oil Gas Hidalgo Texas; Records, County, pursuant Lease to Article 5421-e, Texas, amended, Revised Civil Statutes County relatores filed *3 Hidalgo County, Texas, against at Law of Com- Wheelock Oil pany, al; day April, et that on the 28th of the commis- Judge appointed by County County sioners at Hidalgo County, Texas, proceed- Law of ings, in said made award award, relators, subsequent entry and said to the of pursuant Texas, to Article Revised Civil Statutes posted required by deposited county bond as law and with the equal clerk funds to twice the amount of the award of the com- case, performing required by in such missioners all acts law purpose immediately entering upon for proceedings, described in said condemnation sary which was neces- drilling roadways sites and connection with said gas allege respondents, oil and further that lease. Relators Bannworth, parties Harold Bannworth and Arthur who were not to, asserting in the condemnation referred are some they interest possession land and interfered said that have with relators’ preventing of said land and are relators from exer- cising rights pro- their under said condemnation ceedings; right that enter relators have lawful said doing so, respondents prevented property, that have their but damage. irreparable to relators’ petition, relators, count of said alterna- In the second 2524-1,
tive, Statutes, pray under Revised for relief Article Civil Judgment Declaratory Act, commonly the Uniform known as asserting alleging respondents that are relators existing controvery between is a current property, there regarding respondents the title and relators and adjudge rights, should what the court property, said property, respondents have in and to said title, said or interest respondents have no to inter- adjudge that should and prevent performing fere with or the relators from the acts proceedings. authorized under the terms of said condemnation petition, pleading In the third count of said further in the pray alternative, relators that if under relief is denied Counts 1 and that relators seek to condemn the interest of necessary land; said in said that said land is drilling roadways; sites and relators have the eminent domain and the to condemn for road- ways acquisition drilling sites; that relators determined that the have roadways drilling necessary of such sites is operation lease; the not determine with of their that relators do not know and can- certainty any, interest, what if said re- spondents property; in and to said that relators offer to post necessary such bond and as the court in its discretion deems proper, specifically request and relators the court to set the amount of bond as and that the relators be permitted proceed operation with the construction and roadways drilling enjoined the from the court set the sites that defendants be interfering specifically request therewith. Relators required as Revised Texas, amended, Civil Statutes and relators offer to do equity post required by such bond as is court and perform necessary spondents reasonably such other acts deem premises by way protecting the said re- against damages. prayer pray following temporary In their *4 relief: (1) temporary injunction enjoining respondents A said interfering plaintiff’s
from with construction and use of operations purposes roadways drill sites for the and 5421-c, Texas; Revised in Article Civil Statutes of forth set (2) court set the amount of That the be re upon posting security, quired and that such relators temporarily enjoined interfering from with be defendants roadways provided plaintiffs’ sites, and drill said as in use of ; said Article 5421-c (3) alternative, that this court fix the In the by required Texas, Revised Civil Statutes of and security, posting upon relators be authorized to property purpose possession for the of such take immediate roadways: sites. and drill upon final hear- petition prayed Relators further in said posses- ing title and judgment for relators for the court render court declare property sion said and that in the alternative of adjudge respondents have said interest what and enjoined in- permanently property, respondents and that be purposes terfering property plaintiffs’ use of said with per- authorized, that relators and in the further alternative eminent mitted said under to condemn Bannworth Respondents Bannworth and Arthur domain. Harold B20594, 1, 1959, May on in their answer filed in said cause No. allege following defenses: substance the Statutes,
(1) does That Article Vernon’s Civil not permit authorize the court to payment relators to pleading their be assessed go permit possession relators to into of the condemned, property sought respondents said to be because sought against any injunctive relief relators. (2) That Tract in the count No. described third plaintiffs’ petition lief, any injunctive should not included in re- the condemnation as to Tract
because said No. (This by plaintiffs by had issue was met been dismissed. dis- missing longer as to said Tract No. and this issue no case.)
(3) possession That are agricultural purposes years question under a lease for for fifteen premises; and are entitled to remain in of said the, (4) had not That relators entered into previous attempt and had not made to condemn the respondents in said land. interests of said hearing petition on held relators’ said answer A rendered, respondents May on said date denying temporary judgment prayed all its and entered providing by plaintiffs further as follows: finds, compliance request with the “The further post plaintiffs deposit have offered to bond or plaintiffs, that the *5 might proper as the amount deem in such cash right to afford them claimed to in order enter and sufficient property petition, immediately upon the described but' being opinión that such does not Court, exist in plaintiffs that the and so holds should finds hot plaintiffs, be said permitted post bond or other in order to obtain right entry upon immediate property.” such
It can be seen pleadings from the issues drawn said that the decision in this case interpre- rests a construction and tation of Statutes, Vernon’s Texas Civil as amended in 1945. they Relators plaintiffs contend that since are suit property rights for brought and the suit is for prevent respondents interfering with their and use property of such purposes they relators for the for which given are domain, condemnation and eminent it was and is duty judge presiding ministerial of the in said require permit cause to relators to such as the may proper payment damages deem any might pleading be assessed on relators’ for condemnation in suit, said he theretofore denied such relief. Respondents contend occupy the relators since do lands in asking were not for relief, coming this is case not one under the terms of said Article 3269. The court so construed said article and denied all prayed. relief pro- for which relators plain We think under the visions of the article that the suit filed in the 93rd Judicial Dis- Hidalgo County, B20954, trict coming Court of No. is a suit within the terms quote: of said Article which we Texas, any county, “When State of or city, incorporated political subdivision, having or other of eminent do- main, any person, corporation persons, or or association of having- right, party, plaintiff, such is defendant or inter-' venor, Court, any State, to damages suit in a District in this property property occupied by or them pur- or it for the they poses of which or exercise such domain, or when suit for an eminent going upon making it from such prevent them or or use purposes, the pend- such Court which such suit is thereof dispute ing may parties, the matters in determine between the including of the the condemnation assessment of therefor, upon petition plaintiff, cross-bill of plea of intervention asking intervenor defendant petition, relief; and such remedy plea cross-bill such asking such relief shall not admission of intervention property; to such and in party’s title such event the adverse its claim to may his or such assert and ask condemnor the same if he condemn or it alternative fails to es- that, claim; provided if tablish grant such relief under the Statutes sought, the Court *6 denying re- such Equity, may, prerequisite Rules for or as se- lief, seeking require party the curity may payment the proper as for the Court deem con- pleading for damages party’s be assessed on such Leg., 413, 1931, p. ch. 18; 1899, p. 42nd demnation. Acts 245, Acts Sec, 1; Leg., p. 1.” ch. Sec. Acts 49th It suits. the three classes can be seen that article covers damages property property, One class is for another is occupied domain, having right and the eminent one the prevent third claiming one class is an one right going upon prop- the the of eminent domain from erty making last two classes use can eliminate the thereof. We below, relators, plaintiffs were of suits the in the court because suing damages, occupying property, they the nor were brought against prevent them neither was they using purposes property them from the for which However, exercising right it were their of eminent domain. gone involving property. a suit had an interest The relators against county court, into the filed condemnation an award involved, all of the record owners of the lands made, required de- posted been bond county posited money clerk, required with the amount of gave complying requirements which respects all with involved, right immediately upon them the the lands to enter parties were con- far as the to the suit so record owners and property involving ac- to the cerned. A suit property quired proceeding is such a said condemnation above. as comes within first class of cases mentioned oc Respondents have to the relators would contend to come cupying in order to be entitled occupancy applies only requirement of under this statute. The property which is where suit involves to cases very claiming occupied of condemnation. This one Magee case of Heirs v. this was before court situation plaintiff, Slack, 2d wherein suit, condemnor, occupy involved in did not as came within the it case that was such and this court held of this statute. terms if this is such suit comes is that even Another contention statute, yet the trial did not have the terms within authority determine the amount amount bond to set deposit in order to afford relators should that the cash upon' ques- immediately enter
them They say sought by tion. that the relators and contemplated by denied was not such relief as is statute, being respondents’ contention that part relief referred to in the latter of the statute refers *7 brought by an that the been condemnee. Certainly it, specifically the statute does not nor do so confine any place we see reason to such a construction this statute. proviso 1 simply: injunc- mentioned in the statute is “If sought,” tive relief may party without limitation as to which seeking opinion such relief. In our the relief spoken sought of is by any party the to suit just sought by and not that the condemnee. The statute which allows district try courts under certain circumstances to con- demnation matters has been in existence since 1899. statute Such twice, again has been amended the first time in 1931 and in 1945. On each occasion the statute has been broadened and extended. following It has been construed in the Brazos cases: River Con- (1940), servation and Reclamation District v. Costello 135 Texas 307, 1220; (1), 143 2d 577 130 A.L.R. S.W. Brazos River Gas Company v. Brazos River Conservation and Reclamation Dis- (1941), refused; trict 150 writ Magee S.W. 2d of error (1953), 797; Heirs v. Slack 152 City Texas 258 2d S.W. (1955), Houston v. Adams 2d S.W. unnecessary opinions. They it We think discuss these are all conclusion, harmonious and lead to one that is that Statutes, Texas Vernon’s Civil as amended in 1931 again by Legislature was in intended remedy adequate condemnor say district court. Suffice it to that this court in case, supra, discussing
the Adams the effect of the 1931 provides amendment which that the condemnor as a defendant by ask for could cross action condemnation of the in- admitting condemnee, volved without title said: changes noted, made are all of “When becomes obvious purpose of the 1931 amendment was to allow a con- pending to assert its claim title and demnor take (279 313). p. 2d at trial.” say changes we now can when all the It follows made purpose noted it becomes obvious
are of the condemnor, defendant, plain- was to allow a whether amendment intervenor, its to assert claim of title and take tiff respondents argument the' pending To follow trial. would lead They say strange plaintiff that a results. ús intervenor" coming article within this cannot have the a suit of im- in- entry asked for pending mediate the condemnee trial unless supra, junctive case, opinion relief. This court’s Costello Appeals at Eastland has been construed of Civil case, supra, Company the Brazos this Gas case, holding has no supra, that a condemnee Adams right in effect ready, able where condemnor willing provision adequate to make owner under court. Yet orders of the trial being condemnee, entitled would have us hold that the while injunctive relief, prevent- accomplish result could the same ing by resorting help entry to self immediate of condemnor though violence, force or ready, the condemnor threat even willing adequate provide able and Legislature in- involved. cannot belief We having juris- say tended to in said that the district court statute duty authority and diction such case would be without necessary protect fix amount of the condemnees *8 property, thereby making possible in their it for the condemnor entry comply the land. to immediate on No therewith make strange holding or unreasonable results could our occur authority duty. the district the trial court had such When court this the re- instance was confronted with condemnor’s alternatives, injunctive relief, quest it had two granted grant is, injunction. the deny the court or to the Had injunction, relief. the would needed no other condemnor However, the the should court concluded that denied, duty it fix amount of the of the court to the became security necessary protect in their the condemnees rights, upon compliance the order of the court so that with such upon entry the land for the condemnor could make immediate purposes for it had the condemnation. which of is respondents’ points brief of raised in their One jurisdiction this suit in tres- trial did not have because court good faith, merely pass try was filed filed in title was not but conferring jurisdiction purpose on district not raised in the proceeding. matter was in a condemnation This pleadings. The trial by plea in abatement or other trial court passed he facts reflect that judgment does not court’s determining pleadings, the statement of good faith. From apparent judgment it is that all trial court’s and the facts parties good faith, we suit assumed that the here. as much assume proceeding has mandamus been hear this jurisdiction to Our the relators had the because
questioned n remedy appeal Appeals to the Court Civil decision denying temporary injunction. district court court, however, propriety this not before is requested denial of the relators. The issue here is judge, temporary whether the trial he had denied the in after junction, authority had the set to refuse to the bond or which would allow the relators to enter the land. This re interlocutory appealable, fusal to set the order bond purely remedy it duty, and since involves ministerial directly City mandamus filed in this court is available. of Houston Adams, 448, recognize 154 Texas 308. 2d We it S.W. v. policy Mercer, is the of this court as announced Houtchens v. 2d that where the Court of Civil Appeals jurisdiction grant has a writ of mandamus the Su preme grant Court will not application writ unless is first Appeals rejected by made to the Court of Civil that court. However, Appeals jurisdiction Civil does not have grant proceeding. the relief relators seek this The court seek necessary order which relators is not writ to enforce the jurisdiction R.C.S., Appeals of the Court of Civil under Article compel is it a judge
nor writ proceed district judgment under trial and R.C.S. presume that opinion We trial court will follow the necessity mandamus, without this court of a writ of so, the event should fail to do clerk of this court is issue writ of mandamus in ordered to opinion. accordance with this Opinion delivered October *9 joined by
Mr. Justice Calvert Justices Walker and Green- hill, dissenting. agree that
I cannot relators are entitled to the writ of man- they seek. damus agree of majority
I with the conclusion that as now writ- applies suits, to three Article 3269 classes of Cl) ten to-wit: (2) to property; suits suits occupied recover to having right by domain, a one of eminent (3) and prevent claiming for an suits one going upon domain from making of eminent or agree I also with conclusion of majority use thereof. that (1) (2) a class (3) a suit this is class class suit. I agree that relator’s suit was not ground attacked further My agreement that majority it was filed in faith. with the bad point. ends at that important proviso
The is this: Does the case at court, upon require denying end of Article district injunctive possession having relief to one out but wishing the possession, of eminent domain and to obtain immediate security payment damages? fix clearly fixing requires security only prerequisite as a denying injunctive relief. have held that in case to which We applicable fixing the statute is security mandatory is discretionary wording rather than as the literal of the statute imply. City seems to Adams, of Houston v. majority interpret S.W. 2d 308. The now the statute to mean fixing
that mandatory injunctive is when relief any party is denied to to a suit who in any seek it my three opinion interpretation classes of suits. In that distorts meaning of the statute will lead to unreasonable re- my opinion sults. is duty It fix exists sought by when relief is and denied to an owner-con- demnee, exists, therefore, only it when owner-con- by cross-action, demnee, by by suit or pre- seeks condemnor, possession, vent a going possession, out of from into prevent gone or using possession a condemnor has who into from property. It interpretation seems to me that by wording impelled history. the statute is its both and its majority’s interpretation I have said that will lead to strange majority’s unreasonable results. Under the inter- pretation if one of eminent domain has title dispute with the owner-condemnee and out of obtaining without force, wishes immediate he asking up must think some basis relief and deny the then the court to relief he has he induce asked else will statutory put up go have no into im- possession. logic statute would then all mediate bereft of requires would be so because the statute and reason. That given prerequisite as a to a denial of security be given only type injunc- the condemnor. The it be and that asked a condemnor could be would relief which tive obstructing prevent interfering the condemnee as would case, go possession, into as in this condemnor’s with *10 using get property. the or, being to continue To possession, using property against the possession or to continue into condemnee, a needs interfering condemnor relief and denied, granted, not a only that relief con- it is when granted, protection security. the demnee needs the if And protected by injunction It would condemnee would be the bond. say Legislature judge, foolish that the intended that a trial say situations, either of to the con- those fact should have to get possession demnor: “In order to of or the to use you grant injunction need an If I should to remove obstructions. him, protect it the security condemnee would but then need give security .1 require you statutory could not because permits give deny require you the statute if I me to you injunctive deny you I relief. will therefore you seek, which continue means that the condemnee your possession to obstruct or deny and will use of you security, require need before I it I must but security. Having given it, get you you then all the relief would Legisla- gotten granted if I had it.” I cannot believe legal tiddle-dy-winks. playing ture intended the ever by by majority of the Neither cases cited supports interpretation judgment their of the statute or the granting Slack, Magee the writ of mandamus. In Heirs v. only pertinent question Texas 2d decided S.W. gave having was that Article 3269 to one of eminent domain an in a title alternative of condemnation suit for court, regardless appeared in the district of whether he in the intervenor, plaintiff, suit for title defendant or even though possession. he was not in of the one out of of eminent domain but security City to have the court fix was not in the In case. Adams, 2d suit was v. 279 S.W. Houston City continuing flooding enjoin Adams to plaintiff’s property. By way City of answer the title asserted alternatively sought property and to the its condemnation. A granted temporary injunction Thereafter, was Adams. district court refused to dissolve the and refused to dissolving fix condition to it. The effect of our hold ing- mandatory duty was that it was the the district court giving fix injunction. to dissolve the sought It will was not be noted sought by City owner-condemnee. Our hold ing sharper case is into focus our ci the Adams opinion of Brazos River tation and discussion Gas Co. Dist., App., R. Texas & Civ. 2d v. Brazos River C. reapproved holding construed and writ refused. We holding that no relief exists that case as condemnor, wishing out when of but an owner-condemnee security thé' fixes as á possession, tenders the to obtain
307 precedent entry. condition to To the effect immediate same is Costello, 307, Brazos River C. R. Dist. & v. injunctive 135 Texas 143 S.W. sought by 2d 577. In these cases the relief was case, aware, authority owner-condemnee and no so far as I am is majority for what the in have held this case. entirety the statute is examined as an
When it seems clear saying injunctive sought” to me that “if is relief the court grant may it, may, prerequisite denying it, a or fix damages payment assessed,” “for the be Legislature referring sought by was relief sought injunctive owner-condemnee. If he relief and court granted it and the prop- was thus excluded from the condemnor erty using it, or security. from he would need no But if it was possession denied and the began condemnor went into it, being permitted use was to continue to it, use him owner-condemnee would protect need if it should later be determined that he was in fact the owner. City fact Adams, The that we supra, held of Houston v. the denial of relief to the owner-condemnee was man- datory discretionary against rather than does not militate reasoning. Moreover, permit post security condemnor to go protest into over the an owner- be, effect, grant condemnee sought by would if one were Furthermore, only condemnor. class of suit part described the first proviso statute to which the sought” words “if expressly can be tied is the third class: “when a suit is prevent for an having or it them of eminent [one domain] going making use thereof for such purposes.” history
I need not review the of Article 3269 in detail. It general way. enough history it in supports to review That espoused. interpretation statute here Prior to the of the forerunner to Article 3269 in enactment the exclu- exercising of eminent by method of domain sive was by special proceedings to condemn the one power. Ry. Benitos, v. Co. 59 326; The International & G.N. Texas Ry. Poindexter, Gulf, Co. v. 7 C. & S.F. S.W. Gulf, Ry. Co., 323; v.Co. C. & S.F. Wharf Galveston Texas (Acts Regular Act of 1889 Session 21st railroads, only 18) applied Ry. Pecos Leg., p. & N.T. Co. v. Malone, App., permitted 222 S.W. Texas Com. con- a railroad a district when it was demnation occupied By it or thereto. shed express cross-bill terms of Act condemnation was to plea operated and a as an admission plaintiff’s title. It was carried Revised Civil Statutes into the Art. 6531 in of 1911 as Art. and the 1914 statutes as By the time it carried into the Statutes form. Revised Civil *12 having power apply all of 1925 it was broadened to to the same. provisions remained eminent domain but its By otherwise 245, p. Regular Leg., ch. an Act of the of the 42nd Session however, 413, again amended, was As statute amended. only right exist continued to to condemn in the district court by way of having power defendant and when the one was of suits were It was in this Act that the three classes cross-bill. is, property, up, property, first set suits going prop prevent or for the condemnor significance making special erty also or use thereof. It is of proviso appearing this Act that now in it was in exact lan in almost the was added and that it was added words, today. guage appears In other in in that Article which giving denial provision a condition to as ap relief, originally enacted, only have injunctive could injunctive to an plied relief was denied situation which provision for no the statute contained owner-condemnee because having suit as power initiate a of eminent domain to one The 1931 Act also added the plaintiff and seek relief. provision plea did that a for condemnation cross-bill new opposite party. The Article of title in the admission constitute again put present form in 1945 into its was amended Leg., p. that amendment ch. 404. Under the 49th Act of party was extended to in the district court to condemn ap having party of eminent domain whether intervenor, there plaintiff, defendant case neared Act, emergency caption language body of the its is no Legislature indicating that the an intention of the clause fact situations in which give was extended to might type and have some seek condemnor it denied . proceedings instituted condemnation case relators In this owning sought against to be con interests some Proceedings against respondents. instituted Were not demned. sought go possession property, of the res into relators When presents self-help keep them out. That a fact pondents used Legislature did not envision when Article which situation open had two courses to them. Relators last amended. 3269 Gregg Dist., App., S. Texas Civ. River Water Lower Nueces v. They respondent’s admit refused. "could writ 2d 303 S.W. regular against proceedings title institute 3264; Ry. Tyrrell, them. Art. Houston N.S. Co. v. 128 Texas By taking 2d depositing S.W. that course and by special commissioners, amount of subject award made respondents’ withdrawal, security, with additional they could very have secured brief Art. time. 3268; Housing Authority City Thomas v. Dallas, open 2d 93. The other course to them was to sue court, they title the district but if took that course the gave statute acquire them no immediate un- respondents sought less They relief. took the latter course and judicially we should not provisions now extend the statute order to necessary relieve them of the effect of doing made a bad choice. In so we all advantages might they through regular have had condemna- tion and relieve them of all of the burdens. really What relators need and want as the effective *13 remedy plight they in which find themselves is a manda- tory injunction require respondents to remove the barriers which, by they self-help, prevent entry erected to an on the property. They prayed type asking of relief for a temporary injunction in the trial court it was denied. an If erroneously was remedy denied their ap- peal Appeals to the Court of Civil judgment. revision of the really What we are asked proceeeding to do in this mandamus is to direct statutory security the trial court to fix the and then judgment denying to reverse the trial court’s granting judgment and render ap- it when relators have not pealed judgment. from the trial court’s justi- This we are not doing by rewriting except fied Article 3269.
Opinion delivered October 1959.
Rehearing overruled December 1959. Davis Et
Tommie Ux v. Louis Gale. January A-7172. Decided No. (330 610) S.W. 2d Series