203 S.W.2d 1020 | Tex. App. | 1947
The City of Mineóla, Texas, filed proceedings for the purpose of condemning for highway purposes a strip of land about 31 feet wide north and south by 50 feet long east and west, and being the front part of premises upon which the home of appellants is situated. Commissioners were appointed by the county judge of Wood County to assess the damages for the land to be appropriated and from an award of $1500 made by them the city appealed and upon trial before a jury in the county court of Wood Cou'nty the damages were assessed at the sum of $500. From this latter award W. N. Jones and wife have prosecuted this appeal.
The principal contention made by appellants in the various points assigned by them is that a condemnation of private property for public use in excess of that which is necessary is not permissible. In this case it seems that a total width of 31 feet was condemned, 21 feet of the strip
“Generally, a determination by the grantee of the power is conclusive and is not subject to judicial review, in the absence of fraud, bad faith, or clear abuse of discretion.”
When the city commission of Mineóla passed upon the matter of the necessity for the widening of the highway their action in that respect was conclusive, absent a showing that they had abused their discretion and had acted fraudulently or capriciously. Appellants in their pleadings filed with the special commissioners .upon the trial of the case alleged fraud and an abuse of discretion upon the part of the commissioners and the burden of proof was upon them to establish those allegations. The record is without any evidence to sustain the allegations so made. While not legally required to do so, the court submitted the question of necessity to the jury which found from the evidence that a necessity for the widening of the highway to the width in question existed. The 10 foot strip parallel with the paved portion of the street and on the south edge thereof was appropriated and used for a sidewalk and parkway adjoining the paved portion of the street. It is well established in this state that sidewalks and parkways constitute a portion and are a part of the street itself. Brinlee v. Taylor Grain Co., Tex.Civ.App., 166 S.W.2d 724; Edgeworth v. City of Pelly, Tex.Civ.App., 173 S.W.2d 254.
With respect to the point made by appellants that no effort had been made by the city to agree with them upon damages accruing to appellants, the record discloses that the mayor of the city of Mineóla made an effort to agree with appellants upon the value of the property sought to be condemned prior to action by the city but that his effort was unavailing. It was not disputed that an effort was made to reach an agreement as to the amount of damages sustained by appellants and the pleadings of appellee contained allegations that efforts were made to effect a settlement. We might note in passing that no issue in regard to the question of settlement was submitted and none was requested by appellants. Under such circumstances presumptively the trial court found that a bona fide effort had been made on the part of appellee to settle the issues in controversy and that the statute in that respect had been complied with. Fort Worth Independent School District v. Hodge, Tex.Civ.App., 96 S.W.2d 1113; 20 C.J. 895, Sec. 318;
There being no error presented in this appeal the judgment of the county cou'rt of Wood County is affirmed.