20 S.W.2d 222 | Tex. App. | 1929
This is an appeal from an injunction granted by the district court of Hill county, which in effect restrains the county court of Hill county from in any way proceeding to hear, act upon, or permit appellant to institute condemnation proceedings, or prosecute the condemnation proceedings already instituted, in the county court against appellee for condemnation of a strip of land which appellant claims is necessary for its use in the transportation of gas through a pipe line already laid by it over said land. The record shows that in 1922 the Lone Star Gas Company, a corporation, laid its pipe line across a small tract of land owned by appellee, through which it had been and still is transporting its gas into the town of Itasca, in Hill county. On the 4th of January, 1929, appellee instituted a suit in the district court of Hill county against appellant in trespass to try title to said tract of land and for damages, and for an injunction restraining appellant from using said property. On March 5, 1929, appellant filed with the county judge of Hill county its petition in due form, as required by article
The real question to be determined is whether the district court can enjoin the county court from acting on condemnation proceedings filed by one who is entitled to exercise the right of eminent domain. Our courts have uniformly held that a district court cannot enjoin the county court from trying any case over which the county court has Jurisdiction. G., C. S. F. Ry. Co. v. Cleburne Ice Cold Storage Co.,
Our courts have specifically held that, where a party entitled to the right of eminent domain has been sued in trespass to try title, he is not required, under the provisions of article 3269, by cross-bill to ask for condemnation proceedings in said suit. Our courts further hold that, where a defendant suffers an adverse judgment in a trespass to try title suit, he is not estopped by said judgment from thereafter bringing condemnation proceedings. In Rabb v. Le Feria Mutual Canal Co.,
In the case of Vance v. Southern Kansas Ry. Go., the railway company had built its line across Vance's land, and he brought a trespass to try title suit against it, and was successful in said suit, and the judgment awarding Vance said land was by the appellate courts affirmed. Southern Kansas Ry. Co. v. Vance (Tex.Civ.App.)
It appears from the record in this case that the original suit was brought by appellee H. L. Webb in the district court in trespass to try title, in which he claimed the property in his individual right. The condemnation proceedings, as filed by appellant in the county court, made not only appellee and wife parties, but made J. W. Walker and wife, the tenants on said land, and R. E. Morris, as the owner of a leasehold interest, and the John Hancock Mutual Life Insurance Company, a corporation, which held a lien on said land, parties.
Under the provisions of article 3269, before a defendant can invoke the statutory *224 right to have property condemned in the district court, he is required to admit the plaintiff's title, and the district court cannot assume Jurisdiction to condemn property unless and until the defendant does file a crossaction containing said admission. The appellant is not required, under the decisions above referred to, to make said admission or to invoke the jurisdictional powers of the district court in the suit that has been filed against it in trespass to try title to land that it is using. Neither is it prohibited by the pendency of the suit in the district court from instituting proceedings in condemnation in the county court.
Appellee, for the first time, in this court contends that the proceedings in the county court under which appellant seeks to have the property condemned are irregular, in that the record shows a special county judge appointed the special commissioners to condemn said property and fix the value thereof. The facts relative to the appointment of the special county judge of Hill county are not sufficiently revealed by the record for us to determine whether or not said proceedings are in every respect regular and authorized under article 3266 of the Revised Statutes of 1925. All of these matters, however, can and must first be determined by the county court. If the proceedings are for any reason irregular, or the Judgment rendered by said court erroneous, same can be reviewed by the appellate court on a direct appeal from the final judgment entered by the county court.
The District Court was in error in granting the injunction, and same is hereby in all things dissolved.