*1 REHEARING MOTION FOR ON his mo point

Appellant’s third that this Court rehearing asserts

tion for no contract holding that

erred position appellant says that

created since affirmatively pleaded by appellee.

was not the con pleaded sign that he did

Appellee

tract, intend did not so . but binding until to become

for said contract him explained to

the contract had been signature Murray and his had been

David Murray.” con-

acknowledged by David We pleading giving fair notice

strue appellee’s position was that binding contract existed.

Appellant’s rehearing de- motion

nied. DISTRICT, WATER

FRANKLIN COUNTY Appellant, Majors, MAJORS, ux. Letha

J. et G. Appellees.

No. 8037. Appeals of

Court of Civil Texarkana. Vernon, Edwards, Mt. Woodrow Jan. pellant. Elliott, Winnsboro, Clyde Carlock,

D.M. Canton, appellees. Bass, Jr., Elliott & RAY, Justice. dated November opinion following substituted

is withdrawn therefor. (ap District County Water

The Franklin acres condemn pellant) by G. County owned in Franklin J. (appel wife, Majors Letha Majors proceedings, the condemnation lees). In ap sought to take level, sea mean feet pellees’ land below *2 372 Statutes, all of includes acres, and land, ed Texas the 51.2 of and the remainder empower- County. district The (as shown Franklin of feet an elevation 390 above following priv- powers, the trial ed to exercise of the judgment the corrected ileges, functions: lawsuit and in the The crucial issue

court). to right appellant district concerned the of control, preserve store, and dis- “(1) To taking acres; such whether take the 51.2 waters, the its flood tribute and waters necessary purposes; and for lake was streams, for all and of its rivers waters discre appellant had abused whether accomplish these purposes and to useful The trying in the acres. tion to take 51.2 including practicable all means ends prop purpose condemning appellees’ in the construction, and the maintenance impound to erty build a reservoir was to improvements, appropriate of all eration sold those in need and water be facilities, acquisi- plants, the works and Trial was recreational facilities. rights prop- all other water and tion of trial, appellees the jury. During had to a erties, lands, tenements, and easements the protest taking up not did 390-foot the necessary purpose to the rights all other testimony the The reflected that level. organization of of the District. the of frequency flood between an elevation level process feet above mean sea store such waters “(2) and feet To and years. only municipal, hundred domes- will be once in one and same for distribute tic, Appellees position purposes, that irrigation took the and industrial 1, any Chapter appellees’ requirements district of subject had no need to the of of the above 390-foot elevation. Title Revised Civil Statutes land jury appel rendered verdict favor of as amended. lees, and found that the condemnation of dispose property rights of “(3) To 51.2 the the acres above 390-foot contour longer the are no therein when same purpose appel line the allowing was of the purposes needed for the for which lant district to lease the land for cabin sites same for District is created or lease camps. and jury trailer also found will interfere with which not

that dis district had abused its of the property the use of the District.” determining cretion in that the 51.2 dis the of the powers given other to the While there are judgment trict. The trial court entered district, they dispo- the are material to allowing appellant appellees’ condemn case, exception sition of this with the of MSL, of below an elevation 390 feet 4(7), of which are 4(6) Secs. right but denied the district’s to condemn as follows: appellees’ property (the acres) above “ . . eminent domain point that elevation. No is raised concern hereby expressly on said Dis- conferred ing money any award for of the land. procedure trict and the with reference mo- Appellant district filed its amended condemnation, the an esti- assessment of setting up trial “no evidence” tion new damages, appeal, mating payment, evidence,” support “insufficient entering upon property pending ap- judgment findings jury, peal procedures prescribed and other based thereon. The trial court overruled Title 52 the Revised Civil Statutes appellant’s Appellant filed its motion. Texas, 1925, as heretofore or hereafter court, peal in this seeking a review of amended, apply shall to said district.” points on judgment trial court’s six 8280-341, of Art. An- 4(7) Sec. Vernon’s error. Statutes, provides: Texas notated County The Franklin Water District things all acts or Legislature created Act of 59th “To do 8280-341, effect proper carry into Art. Vernon’s Annotat- attempt District to con- for which the a matter of law from the purpose.” organized.” created and demn for unauthorized us, jury found In the case before A district, water such the one appellant district it was the can do that is au which *3 the 390- acres above condemn the 51.2 to by creating thorized the statute Ait. close sites and foot line use as cabin contour examination creating of the statute the individuals, leasing camps for trailer County Franklin District does not Water appellant district found that and further give authority it acquire land in excess in of discretion “acted a clear abuse with control, store, of that which will be “to used the determining that the 51.2 acres above preserve and distribute its waters flood line or con- 390-foot contour was waters, streams, the waters of its rivers and district.” purposes venient for the of for all purposes useful accomplish and to by these practicable ends all means in au- 6081r have Water districts under Art. cluding maintenance, the construction, public acquire recrea- thority “to lands for operation of all appropriate improvements, facili- purposes, construct thereon tional plants, facilities, works and acquisition the use, for the public ties for of rights water and all properties, other eration, supervision of maintenance and lands, tenements, easements and all other areas, public and to enter such recreation rights necessary to purpose the of the or local, agreements state or into with ganization of the district.” Agencies planning, Federal construc- tion, such operation of maintenance In City of Thompson, Wichita Falls v. facilities, necessary access together with 431 S.W.2d (Tex.Civ.App., Fort Worth thereto, adequate roads and to maintain ref’d, writ e.), r. Fort the Worth n. water sanitary standards on the land and Appeals of Civil had before it the to such part adjacent areas as a of and questions identical presented to this Court. recreation areas.” said, There the court “The attack made in the trial upon court right the of the

condemnor to condem district property presumed in It is that when a question falls into power, proceed two different it can classes. has condemnation The first involves the assertion it needs that the condemn such lands it decides as condemnor did possess is legislative long purpose as that for its as grant of power may of by eminent The domain authorized statute. landowner condemn for the purpose question by showing that presumption (cabin rebut sites). The necessary, second or although being asserted that than more land is taken purpose being for some condemnation was one that the land is condemned by Legislature, by authorized stat necessity that authorized other than existed condemning particu- contested either the the landowner has ute. When lar land or the question. amount of probative land in evidence the district’s of second class that it has piece attack can be maintain- take a of land on the basis ed authority if statutory condemnee can show that the or no constitutional taking condemnor fraudulently acted with the land or that the district take clear pur abuse of discretion in connection more land than However, going therewith. forward poses, the first class of then the burden of attack, if it is the condemnor- shown that the of the evidence shifts to with case, the landown condemnation is one In the instant for which the con- district. rea does that the power er-appellee demnor not have undertook to show of eminent domain, it land was unnecessary appellant then son district wanted his to demon- parks and strate fraud or trailer clear abuse of discretion for use as cabin sites and any on designate behalf had failed to condemnor because such that the district roadway, fraud or clear as a abuse of discretion of his land to be used results park or recreation The burden area. After a close examination going forward with the shift- evidence thus record we have concluded that ed district to go show that it was water district failed to for going to use the proof 51.2 acres for one or more ward with its burden establish ing specific purpose appellees’ authorized Art. for what 8280-341 taken, Art. being 608lr. district was was failed to show and/or part unable to being show what that the land taken for an au going purpose. to use for a thorized park road or pollution recreational area or control. In appellant’s stated, “Appel- brief it is testimony in the case confirmed that lant submits that reading fair property already had taken been the dis- absolutely statement of facts convinces *4 trict leased and back to the former owner that the land use around the lake has per per year. testimony at acre $30.00 planned yet.” been The record further further shows that the Board intended to appellees’ being reflects that land con- lease out some of lands for commercial demned for a which had not been marinas, camp sites and other by appellant established district with such private Further, appellees individuals. specificity as to come within one of the were able show that the known sales statutory purposes authorized for condem- of water from the lake would be insuffi- appellees’ nation. In order to condemn pay cient to off the bonded indebtedness of land, it was for appellant spe- building the district for the lake and the cifically point purpose, designate out the operation. cost of its maintenance and of the land to be condemned for ample There is in the evidence case for specific purpose, and to show that such jury trying to believe that the district was condemnation was one authorized stat- acquire adequate land above the 390-foot ute. This the district did not do. MSL to lease in an effort to establish an fact, As a matter district had not pay income sufficient off the bonded appellees’ it determined what would use indebtedness and the maintenance and for, condemned, land once it it but eration of the lake. states pur- it for knew that needed revenue brief, readily taxpayers, “It is seen the poses, parks. as well as roads and How- County, State and need to make some ever, appellees’ designat- land had not been money approximately out of the 850 park, ed for a road or au- surrounding of land the lake above the 390- purpose. thorized Otherwise, foot flood is no in- level. there operate come to maintain and the lake with attempts con When a condemnor get unless the can Board Directors demn spe land and has not established the money from adjoining pay this land to cific the tract of land which maintenance, personnel, operation condemned, being dis such is an abuse of provide control, the lake as well as cretion as matter of law. areas, recreational and roads around lake.” It unfortunate that the district In Brazos River Conservation and Recla- position, finds itself in this financial but Harmon, mation District v. S.W.2d obligation duty is not the of the land- ref’d, (Tex.Civ.App. Eastland error adjoining owners the lake to alone “ m.) w. o. the court . . Un- stated: construction, the revenue for the mainte- proper pleadings, testimony der and issues operation nance and of the lake built jury has found that the district appellant. duty That falls on all of the alleged condemn the ‘excess lands’ for taxpayers landowners and within the dis- statute, not warranted trict and not on the few who have land ad- addition, has found that the effort jacent lake. condemn the same amounted to an abuse charge by the of discretion authorities conclusion proceedings.” It our ux., Appellants, et Albert A. KLEIMAN happened has this that the same pre- ample jury evidence and that had WHITE, Appellee. Jr., A. Edwin Tod v. sented to it to sustain the verdict. No. 11871.

Massey, Gal- (Tex.Civ.App., 30 S.W.2d 532 1930, writ). veston Appeals Civil Austin. judgment of the trial court is af- firmed. Jan. 1972. Rehearing Feb. Denied

DAVIS, (dissenting). Justice very I had little time to dissent. I have Facts,

study Transcript, Statement But, Rehearing.

Briefs the Motion for

I have decided it is

case be to the Trial reversed remanded

Court for a new trial.

I believe that has

condemn the 51.2 acres of land which it roads, park purposes,

seeks to condemn for

and other uses prescribed that are original opinion.

Statutes as cited in the If Appellees’ pleadings proof do meanings

come within those of the Stat- they

utes pleadings will have amend their get proof their order. judgment

If the Trial Court is

affirmed, Appellees want to continue

their effort to they condemn this land will original

have to file an Application for

Condemnation, have Commissioners

pointed, thereon, hearing have a and either appeal.

side can take an Then the case will

have to be tried over the District Court.

It seems that an error was committed Appellees failing plead and to

prove legislative use of the 51.2 acres This, to be Appel- condemned.

lees must do. To reverse this case on this

ground reversing will not be it “in the in- justice.”

terest of reversing It will be proper

so that pleadings may be made and

proper may support evidence be offered in

thereof. United Fire Insurance States Carter,

Company 2, Supreme 473 S.W.2d

I would judgment reverse the

Trial Court remand the case for a new

trial.