*1 suit.; оf pendency appointment this The general to of .probate seems court. It be. a, . remedy, like should of, in receiver is a harsh in Texas that law. situations Ctile n unless, there is other necessary prove that not be to no only (cid:127)this it is not resorted simple- remedy. case it seems that a acquired .In this may have the administrator .this all; filing pendens give but notice intervening-,purchasers, lis property from would ’ (cid:127) apрellees may protection need. proven which it must be some conduct . Jones, Tex.Civ.App., Supervend in present Corp amounting intrinsic: fraud v. 707-710; Joy v. Tex.Civ S.W.2d Joy, McCabe connection the transactions. .with 180; .App., Ferguson, Gilmer v. Cambiano, Tex.Civ.App., S.W.2d v. S.W.2d 984; Blackwell, Tex.Civ.App., Tex.Civ.App., 148 Duncan v. 237; S.W.2d Dilbeck v. 634, 1, 2, 3, Thompson, 636. 25 S.W.2d v. 126 S.W.2d Johnson 374, 49 436. Stephens, 121 Tex. S.W.2d appointing court order of the triál In case there is no fraud shown-or this the'receivership receiver set aside and1 is ' attempted shown in with to be connection vacated. administrator, either,piece by the.sale far property, as the shows .So record purchasers property . of intervening purchasers. Inadequacy of good-faith were shown, is not no
consideration .collu intervening purchasers between sion shown, consequently
administrator is appellees we must hold hаve,failed theirs, burden, which was discharge the v. CITY OF LONG AUSTIN. question that the in property show No. 10198. purchased indirectly by H, Wadsworth W- sale, at from the estate the administrator's Appeals Court Civil Texas. Austin. since We conclude that therefore tracing there no in record is. evidence Feb. 1954. estate, purchase any funds into of. question, is there since properties
no shown in intrinsic connection fraud with prop the sale administrator subsequent purchase erties of .them him while he no trust administrator, was. upon impressed 'properties. can be impress upon-
-Failing -proper a trust appellees
ties the have failed to show such
probable1 the--properties interest in and to appointment
as authorize the a re - ceiver. in-this point involved last. -it is property case whether shown question danger lost, removed, is in ,We injured. materially ap- .or think wholly pellees failed establishing have
-.this, there no evidеnce as in. the record n appellant convey prop threats such- innocent'purchasers;
erty to -no evidence property being-ihjured, nor-is there cannot, any .-evidence made rents during, collected account for
CDCO (cid:127)co knowledge an elec- or consent constructed land, placed tric transmission line on support thereon and anchored the same ground by guy means wirе and *3 deadman; that valuable were cut and trees stumps the brush and were left on the land n home; purchased ap- which she for a that pellee’s action rendered the land unfit for purpose it; bought for which she that it cost least at remove $50 to by appellee; appellee brush cut not, did now,. and does right not have the to con- demn her land because there had an been adequate right way provided where the said transmission line could and should have been prayed located. She for dam- ages trespass, because judgment for of. requiring the removal of the transmission line, pole land, and anchor from her and in prayed the alternative for for the market value of her land at the time of the taking. Appellee answered, cross- appellant’s ownership action admitted land and sought рortion to condemn that occupied by line; then its transmission al- leged that the-line was constructed ini appellee and that * .«* (cid:127)*. at--suchtime found-it nec- - essary to -extend a transmission line light plant from its electric to and through the land hereinafter decribed and in-the bona fide belief that it had .granted been an right- easement and upon land, enter said- placing one' wood thereon and is -now maintain- ing However, said-line thereon. if City of granted Austin an easement to construct the transmission line, said easement has been lost and found, cannot and it therefore be- necessary 'City comes for the of Austin -Chandler, Sidney Austin, appel- P. for appropriate .to an-easement across the " (cid:127) lant. land, said easement for be- Williams, , Jr.; City Atty., purpose placing, oper- T- Robert constructing, W- Burns, Atty., City apr .-ating,.repairing, L. Asst. maintaining, Austin, repairing, pellee. maintaining, relocating replacing .and therein an electric line transmission or system, including only pole of one wood GRAY, Justice. appurtenances, its cut and appellee, City sued Appellant of Aus- trim shrubbery trees and extent tin, try necessary title trespass damages. keep and for them clear of said alleged appellee She system, her electric or and to cut down by' dead, tákingbf that the her weak or' official actioh all time from-time use, necessáry public and further al- enough'to' tall are leaning trees leged that in line was falling.” traiismission the wires strike- placed knowledge on her land without asked Appellee at a and consent and time when- there was “ * * * adequate available to an given that it be an ease- way. right above in ment for the set out strip following strip of land: Appellant’s land is located about miles * * * width, (10) ten feet in City Austin, generally from de- strip land ten the center line of said acre, scribed as .58 and the trans- *4 (10) being particu- feet in width more (constructed along mission line the first larly and bounds as described metes goes easement) a corner of the tract. ácross follows: The west line of the 180 feet aiid tract is' - (cid:127)' the line" 182 south feet. a.point “Beginning at in.the west line Long of the sаid tract and from which A jury trial was had and answer- to.a in point beginning the cor- of northwest special jury to the that in 'issues found: 44' ner of said tract bears N. 24° W.. building appellant’s the line on transmission feet;' 80.5 appellee’s agents land did not servants’ reason; (1) (2) arbitrarily; 22° 28" act: “Thence N. E. feet to 91.32 unjustly; point (3) (4) appellant, that of north line en- termination in the was nothing compensation tract, titled to as the Long of said and from which for (cid:127) land; point (5) “use’? she en- termination the .of that was aforemen- cut; .(6) titled to $50 tioned northwest corner said tract for value trees appellee’s that 80° the value of land bears S. 40' W. 69.5 feet.” immediate- ly placed before the transmission line was ' Appellee alleged it that had been further ; (7)' immediately thereon was $900 ' agree unable to with as to dam- $1,400. after'its market valué was In an- ages, and filed trial a amendment wherein appellee’s swer' to condemnation issues tfie sought an appel- additional easement over jury (8) immediately found: that before lant’s land: November, the taking of the easement' in “Beginning at the northwest corner value market “of .the Reasonable land, 'land, lánd, Long portion.of said Viola tract of considered as. severed cpvered by 80° point thence.N. 40'->E.69.5- a feet to easеment' herein involved” ..the $372.50; para bn the center immediately was (9) in that after described thence,-south above; D graph $500; 22° 28' taking (10) such value was that along W. 91.32 feet the. immediately the taking center line before of.'the ease- point November, 1947, to on-the west line said ment 'reasonable tract;1,and Long land,' .Viola the- thence-north market value óf exclusive of the - 30.5, easement, 24° portion by'the 44' -.W. covered fеet to the northwest $527.- ¡such 50;- tract, place (11) immediately corner of Long, after beginning; taking reasonable market value was its $1,400. with the condemna- In--connection only purpose solé and placing tion' the trial court instructed the issues land-, and maintaining over-said tract nn ' - jury: electric service lines.” you further “In this connection are These easements will be referred to as instructed that for which first and second easements. -City seeking an of Austin is ease- Appellant supplemental filed-her pe- plaintiff’s first ment in the tract of are’ -whereby excepted" tition appellee’s she constructing, operating, placing, re- :plfeadings because it alleged pairing; was not maintaining, relocating and re- city appellee council placing portion had determined in the condemned 6§6 systejn, covery plead by appellee. .line or electric The court’s transmission only charge (copied of wood and
including judgment) into the one directed jury’s easement, cut and trim the appurtenances, and to attention the first its shrubbery jury extent nec- and asked the trees and the reasonable .find essary keep appellant’s clear of said elec- market value them immediate- down, ly system, taking”, cut tric line or bеfore and after “the dead,, November, weak -or time time all from “in 1947.” Issue inquired enough are tall leaning “immediately trees that as to value after falling.” acquired November, strike the wires in easement was 1947.” spe- overruling rendered exceptions ease- awarding cial As to the second easement there is prayed for in cross-action ments as its of, of, at taking ap or least an invasion trial amendmеnt and followed its first pellant’s property in violation of the Con quoted pleadings wording as of those Texas, stitution of Art. Sec. Vernon’s supra, and recited: Ann.St. “The hereinabove de- two easements Appellant complains trial court’s *5 City granted are Aus- scribed to the of judgment refusing any money of sum to tin in 'with the verdict of accordance her the taking land taken is a her of ,the jury ,in accordance with the land in viоlation of the re- Constitution. In provisions 3269, of Revised Article ply point appellee says: to this Civil .Statutes.” “ * '* * we submit that the con- Appellant recovery was awarded a of $50 the'acquisi- struction of such ánd júdgment date of interest from pur- tion of easement an for .the limited ” n n n n (cid:127) n cost’s. poses judgment státed in the does not taking property. constitute a of .reading judgment (which of con- complete jury charge given tains.the acquisition “The carefully of such a by trial court), reflects no issue was merely defined easement damaging a is jury, jury submitted to-the and there is no property of for which a land owner is , finding, as to second easement. . only monetary entitled to damages, if depreciation a there has been in market 3269, Ann.Civ.St, Art. Vernon’s au portion valúe of. the occupied of land property by thorizes condemnation оf cross- n bythe easement or in the remainder of in of the action suits nature of the suit be differently, land. Stated there is us, jurisdiction and vests in the dis fore taking property no unless there anis questions trict court to in .determine appropriation of property by tbe dispute, but .condemning authority -for its own -use. “* * * in, The court, means that acquisition of an easement which power, require.» must exercise -of its not does divest the owner of title or every prerequisite of the' Constitu i right “prop- of -uscdoes take not his n fully complied tion be with before erty.” .person’s property applied to.pub can be point We will notice this to relation n lic Brazos use.” River Conservatio 4, judgment- supra. and to issue Costello, and Reclamation Dist. v. 135 307, 577, 580, Tex. 143 S.W.2d 130 A.L.R. It is obvious that the two .ease 12 20. appellant’s ments do not cross along judgment appellee’s refers request which the same route. No was made amendment, appellee cross-action and its first any trial for the submission of issue reflects that the second easement .was an relative to the second easement. In this independent additional and ground’ state’ .the record waived that of.re-
637 - - 279, paid recovery. appellant. Texas has Rule Rules .ever These ground been appellant unquеstionably taking, was facts establish a of Civil Here Procedure. destroying any damaging appellant’s prop- resisting the condemnation of or Ar,t. erty appellee, by failing Constitution, if violation Texas across ground 1, independent 4, request supra, answer issues on this In to issue 17. Sec. found, it, jury recovery, appellant could waived entitled to recov- object compelled to er agree being nothing for such without “use”. It is certain appellee’s possession and no the failure to submit issues thereon of the land on which support imputed its can be to her because waiver deadman is located exclusive," failure. Wichita & Oklahoma Falls also exclusive as to some portion Pepper, S.W. Ry. occupied 134 Tex. guy Co. v. of the area unquestionably Irrespective 2d the status wire. judgment, 79. This what cents, of the at the time the verdict dollars and upon of the record was to-be rendered jury findings when was received. Thereafter of market value and after before he the.taking, judgment trial court came to render answer jury this judgment awarding could render relief issue cannot- sustained .not because it con- independent recovery ground taking, stitutes a damaging on destroying and- waived, appellant’s finding property public which and a to of use, with- support presumed out adequate is not to be her consent and com- independent pensation recovery. ground Constitution, as to such made. Texas Ormsby Ratcliffe, v. Art. Tex.Jur., 214-215, 117 Tex. S.W. Secs. Sec.. authority pp. 2d 1084. trial court had no 860-863. judgment awarding appellee render Employers’ easement. Ins. second Texas jury The' fact that the found *6 Tex.Civ.App., King, 244 S.W.2d Ass’n v. value of the trees cut on the not land does 369; Employment Texas Commission v. change our conclusion. The easement was Brasuell, 950, Tex.Civ.App., 235 S.W.2d strip limited a 10 foot on the but land error dism. the evidence the shows trees on were cut wide, an area 27 they feet that were valua appellant’s point We have concluded must ble and jury’s'answer (5, the to the issue easement, be as to the second and sustained supra) found the value of the trees cut. jury’s the notice answer will to issue 4. Appellant alleged that nineteen valuable sought trees were and damages cut therefor may It be conceded the evi that “in addition to the amount hereinbefore conflicting as dence to the market value was sued trees, Even if cutting for.” the their appellant’s land before after the and. and leaving stumps the brush and the on line transmission was thereon constructed ground propеr were elements to be consid the damage .as well as to result amount appellant ered in compensating use for the by ing the land reason of such construc (iss.ue4) land and-in determining the be It must conceded land tion. that the had market value of land before and after the value before the a market construction— (.issues6-11,.both taking the inclusive), .the jury found such value the to be Fur $900. cutting submitted, of the trees was- not sо ther the evidence shows: that the was independent but was as an ground submitted along the route first ease constructed of the recovery was ; by and -so support pole placed a answered that on ment land; jury. no-objection There is before us as to anchored to ground by issue. we guy means of a dead- submission Further wire to of the cannot apply that.finding.as 22 here man feet distant from 'the element base compensation for the use pole; trees and on the -of of the -that brush were cut land feet, and after taking a width of '27 all of market value before land to and that' appellants was done without because do so would’ over this consent. 6 compensation jury’s answer There is no throw the to issues and: assertion 1, County Improvement No. Dist. say what Water cannot and we through Tex.Civ.App., 41 ref. have S.W.2d error issues jury’s to those answers the trees jury considered if necessity tak- judicial as issue compensa cutting as elements of their public appellant’s not ing land for use was Moreover, would value. and market tion presented pleadings. under issues answers to in the constitute conflict by evidence that a route and 5. There is some by permission had been easement and oral if we of the record In state this granted аppellee for construction of its the trial judgment of. reform the should Appellant says lines. this route could there and delete the second court by should have been used instead ap left over appellee’s be lines would from ab- of the route across her land. In the and further along pellant’s its- route faith, sence bad facts would not these necessary to establish proceedings would be having reliéf, appellee entitle parties.in ref rights er.ence complained 16 Tex. selected the route of. our-'opinion justice . In second easement.’ p. 815, p. Jur., Sec. Am.Jur. re be reversed requires the cause 'that Sec.' 108. manded. judgment of the trial court is-re- cause this have concluded we Since versed-and this cause is remanded. we will and remanded reversed must be appellant’s further contentions. and remanded. notice Reversed 1175, Vernon’s 13 and IS of Art. Secs. HUGHES, (concurring). Ann.'Civ.St, rule cities home authorizes Justice among own, operate, other construct my jury mind the verdict of the To electric, systems light within things, utter confusion such that it reflects city limits and to exercise jury answered such an of the issues it to appropria- for the eminent right of domain properly extent that no could property for the .therein tion based thereon. 13 authorizes the exer- Sec. enumerated. jury appel ac- found that the whole of right domain to of eminent cise of *7 acre, 25,264 proper (.58 plus sq. may and nec- lant’s land of an quire property “that be objects.” ft.) power efficientlycarry was worth before the lines essary out $900 sai4 lO' (Issue 6) by'91.- .appropri- were built but that ,Sec. cities “to such authorizes plus sq. ft.) strip (913 32' property across this land private .public for ate power was worth before the lines governing shall $372.50 whenever authorities t&e (Issue 8). were The built 'land necessary”. . deem.it quality it is unreasonable about same legal may made a dis If there be strip that* thé 10a have a value of 13 and wording of sec. between tinction more than of the entire tract when such ½ about 25 plain 15, supra; it that sec. dele sec. larger tract than the was times ' “governing authоrities” gates to strip. determining the nec function of power and strip same 10a was also found have property private for appropriating essity of quoted increased value from $372.50 $500 Appellee’s pleadings public use. power immediately after were lines laid. allege determined this supra that -it'-had finding. This a fantastic While con introduced evidence was and some issue the, demning understanding^ play authorities pleading. support In the ab tending to damage property by done to con down discretion its fraud or-an abuse of sence structing power I judicial lines across it have never subject review. is not action specific Authority City before heard it of Dallas v. contended Housing Tex, occupied,by poles space in lines'was S.W.2d Higginbotham, occupation. in value Brown creased 79, 88, McInnis v. 130A.L.R.
639. law, beliеve, I that some as a matter by land under these
damage is sustained though damage even
circumstances
nominal. said, agree
I with all that the Court has my' add
but these observations own for.
satisfaction. Dallas, appellant. H. L. for Adkiso.n, Cusack; appellees.
Frank Dallas, McGILL, Justice. declaratory judg- This was a-suit for a
KENNY v. et STARNES al. injunction, ment and temporary which was ' nn No. 4988. granted the’trial court. Appeals Court of Civil Texas. Appellees plaintiffs were trial court defendant. El Paso. G. P. alleging Starnes and 304 others 3, 1954.
Feb. each was the owner of share of one stock Rehearing Employees of the Postal March Mercantile Com- Denied 1954. Inc., Dallas,
pany, Texas, private corpo- ration, $15; of the value of all capital 'fully paid been stock had for in cash; Kenny, Jr., that the defendant H. E. assignee for the benefit of creditors of Employees Postal Mercantile Com- pany, Inc.; he and the officers di- .and .that corporation rectors of sаid en- procure deavoring agree- a contractual shareholders, corpo- ment with the voluntary ration for a assessment for the against benefit of the each creditors share- approximate sum of holder $25 *8 owned; majority each share that a accept shareholders had declined to voluntary- sued the defendant assessment; Kenny, Jr., alleging H. assignee, E. that he officers and directors of said cor- and tl\e poration engaged in a course of con- to, coerce, duct calculated and intended in- frighten timidate the shareholders of corporation stock óf .common into , assessment, voluntary agreeing to such furtherance, campaign of such of co- filed, separately against ercion had ten suits Court, individual shareholders in Justice Place County, Precinct No. No. Dallas