*1 application Error. No filed Mr. and writ error was indicating Pollan, Mrs. our order should not be taken approval holding disapproval either adoption Appeals validity Civil as to the decree. S.W. 2d 723.
Opinion June 1958. delivered Light Company Gladys Texas Power & E. Cole V. Et Al. No. A-6625. Decided 1958. April 30,
Rehearing overruled June (313 524) Series *2 Ryburn Guittard, Ford, all of Burford, and Clarence A. & petitioner. Dallas for holding power Appeals of Civil erred Court light company by amended reduce the taken could not deposit making supplemental pleadings twice after its commissioners, by special assessed
the amount of for construction before entered Janes, Thompson power v. Texas 251 2d line. 151 S.W. Clark, Louis, 953; Ry. Mo. 25 K. & Co. v. 121 St. N. W. Gary, 751; Irr. v. 118 Texas 26 L.R.A. Coast Co. Gulf S.W. 469, 14 2d 266. S.W. Appeals holding erred in of Civil also Court
charge instructing would have the power after the remove erection electric weight line was a comment on evidence. State v. 194; Light Carpnter, Texas 126 Texas 89 S.W. Power & 842; Hill, App. Texas Civ. 27 S.W. 2d Texas P. L. Co. v. & Co. Hering, Texas 224 2d 191. 148 S.W. Eades n & Fades, Dallas, respon- Fades and Eric all of dents. petitioner’s points Gulf, reply of error cited C. & S. F. Brugger, 556;
Ry.
Miller,
59 S.W.
State v.
Co. v.
92 S.W. 2d
Adkisson,
1073;
Conservation v.
River
Brazos
In the Court of Civil E. and husband Cole, McGlothin, (respondents Earnest presented A. here) Willie points
four There question error. of funda- *3 Ramsey case. Dunlop, 196, mental error in the v. 146 Texas 979; McCauley 205 Underwriters, S.W. Consolidated majority Texas 2d 265. The S.W. of the Court of Civil Appeals points three involving construed of these as ques- “the (Texas appellee Light tion of whether Company, peti- Power & having here) possession tioner taken the condemned on December could thereafter limit paid, minimize the amount of by providing to be in judgment appellants might carry operations that on for the gravel removal of May sand free of interference until 1, 1957.” 306 2d 766. Appeals From brief filed in the Court of Civil and the
reply application to the for writ entirеly of error arewe not this certain was the exact contention raised or intended by respondents. to raised For that ap- reason it is deemed points presented propriate set out in the Court of Civil Appeals substantially which are as counter-points same reply application in error, contained for writ of viz: permitting trial appellee’s “1. The court erred in pleadings, evidence, arguments charging jury and in with reference to long a values and at time market after the easement on December condemned was by commenting “2. The trial court erred upon weight charging jury the evidence in May 1,
of appellants that after right still have upon to enter said lands operations carry on for removal gravel sand and since charge assumes the existence of facts not such in record, theory appellee’s singles give out this case so as to it undue court was of jury to the prominence and indicated gravel in removed. could fact be opinion such allowing appellee plead, in- erred The trial court “3. argue purposes jury upon troduce evidence require any in- do condemned the easement was which upon the land for enter appellants’ with th terference May 1, gravel until removing therefrom purpose sand and arrangements that appellee whatever would make and that operations. necessary permit charging jury that the ease- erred in “4. The trial court ap- interfere with include the condemned did not ment pellants’ moving purpose of re- the land for the to enter 1957.” sand and Light Texas & appears that Power It half and a acre tract Company, easement five secured an over erecting by respondents and maintain- owned for the strip ing This described transmission linеs. electric sought proceed- in this The easement of land 100 feet in width. ing being strip lying fifty foot im- over a described pleadings upon mediately easement. The which west of the 1946 ultimately consisted of an the case was submitted Special appointment original petition (in Com- which supplemental petition requested) and a missioners was County after Law the commissioners was filed *4 original petition fifty completed foot had their duties. In existing easement strip was located in reference to the then and as: described
*“* * right way an and of over and de- across line, together said for an electric transmission fendant’s land egress right ingress strip land with the of over of 50 feet wide, being line 50 feet on side center above de- West scribed, constructing, reconstructing, oper- for of maintaining inspecting, removing ating, patrolling, said right appurtenances, strip line and and the to remove frоm said any building prevent and structure, except the construction thereon of or other growth and also remove therefrom all fences crops, high, fruit trees less than other than shrubs and 15 feet which, may endanger judgment plaintiff, in the sole in- or efficiency, operation safety, or convenient terfere with appurtenances. However, plaintiff line and its said transmission right occupy permanently any part strip, shall have no of said occupied by except portion constituting the structures right no described, have and shall line above transmission any purpose other for strip, or to use it enclose said fence or subsequent right aforesaid, defendants and than as and the thereon, crops strip, said raise land cultivate of said owners purpose, pasturing for other stock or or use it for live plaintiff’s enjoyment the easement and inconsistent with described, right obstructed or inter- way shall not be above with, except stated. fered to the extent above egress ingress not include “The aforesaid shall future, original construction of said in the after the destroy damage any crops, or transmission line to or fences any subsequent other or of of defendants owner payment said or owners of land without to defendants said however, compen- compensation; provided, that no reasonable strip paid sation need for be the removal from said of build- ings structures, growth, crops, shrubs, or other or of other than high, endanger may and fruit trees less than feet line, interfere with said as aforesaid.” poles, transmission lines and the frames and cross arms
supporting together them with incident thereto were petition: as described follows
“Said transmission line to erected on said land shall in- clude not more than wires, three conductor and not more than together wires, two static H-Frame, single poles, one no guy anchorages, no angle structures. “Each H-Frame shall poles consist of two connected one or more cross arms. “Cross arms shall be poles fastened of said transmis- height
sion line at a sufficient to insure a minimum clearance feet between ground the lowest conductor wire and the any point span. The conductor wires and wires static shall be sustained in the air arms, attachments to said cross and said braces, transmission poles, bolts, line shall include such pins, insulators, fasteners, appliances and other and attachments necessary proper attaching said cross arms to *5 poles said and said wires to said poles cross arms and said to ground.” County
After Law, petitioner the case reached the Court at pleading Supplemental filed a which it denominated a Petition in said that: says purposes which the that for
“Plaintiff require being original petition taken do not in its described right upon land to enter interference with defendants’ removing there- sand and question for the in says plaintiff until 1, Consequently:, until 1957. to date, easement shall subordinate such said defendants’ upon plaintiff right purpose, will to enter said land such permit arrangements necessary such to make whatever (Italics ours). operations.” charge judge the ease- jury the trial described
In his original petition rights according allegations of ment to the following gave instruc- in addition hereinabove set out and forth in relating upon easement set restriction tion petition: supplemental taken does “You are further instructed the easement right enter to interfere defendant’s include with pur- upon upon any adjoining strip of land for the said land or day removing gravel therefrom, pose 1st sand and day May, plaintiff make and that until that datе will arrangements necessary operations, permit such whatever are and, further, day May, that after the defendants 1st carry still have the to enter said land and on will operations gravel, long for the of such sand and so removal construction, operations do not interfere main- operation of line.” tenance and said electric transmission special pat- instruction was This followed four issues suggested Carpenter, those terned after State v. 126 Texas In all these issues the in- 89 S.W. 979. date of quiry as ascertainment of market value December Special Issues 1 and 3 referred market reasonable value strip covered the easement and of the severed remain- ing part respondents’ land, respectively, immediately before Special easement on December while immediately 2 and 4 refer such values after the Issues Nos. date. on said agreed seemingly controlling parties are date is 1955. Peti the ascertainment by the say the date submitted trial that was court. The tioners however, contend, judge’s trial instructions restriction of'the easement contained in with reference permitting petition had effect supplemental long at a time value market after to ascertain
501 argument. agree unable with this are We seemingly petitioner’s upon proposition that It based by rights in and were to measured alone be original description petition. this in the If easement contained premise accepted that en- be it concluded therefrom and be restrictions as to the use of the easement could arise forceable then, coursé, filing supplemental petition, of the special use of the the premises instruction of the court as to the dominent gravel mining purposes May 1, peti-
for jury arguments concerning tioner’s the same would constitute representations condemning authority mere as to what use the hight make or intend to make of cases the easement State, App., as Perkins v. Texas Civ. wr. dism., applicable; we court be here have decree of definitely may restricts the use be made of the ease- by ment the condemnor. It not under its easement respondent’s mining operations interfere with until after May 1, it attempt subject 1957. Should to do so it would be legal processes trespasser. obviously of the courts as a An State, presented supra, different situation was in Perkins v. appeared Highway Department wherein under State sought the easement to be condemned would an have absolute to remove ornamental trees shrubs from way, yet judge trial testify allowed a witness to that it was policy Department trees leave such un- shrubs they disturbed when did not constitute traffic hazards. holding part disposes respondent’s
The above most Appeals. contentions raised in the Court of Civil Neither this judg court nor court is authorized to a trial reverse court’s properly assigned in the of a ment absence error or one which properly complaint can be classified as fundamental and the charge weight that the constitutes comment on the of the evi holdings effectually by dence is answered heretofore ex pressed. special The extent of the easement with which the com admittedly missioners were concerned was different from that County considered in the Court Law. It was the petition function describe the nature and extent of the required. easement An amendment as to the easement filing supplemental petition of a County effected thereupon duty at Law. It became the judge of that explain in detail the sought cоurt extent easement jury might properly condemned order evaluate fifty strip foot the value of both the and the balance of the tract taking, strip, before exclusive well as afterwards. accurately describing the required instructions Such a com- constitute hardly said to can thereto and the incidents weight contention over- the evidence. Such ment *7 holder' rights of the that looks the circumstances decree fixed court property real were of the and the owner gravel opera- respondent’s that non-interference subject to voli- and not such decree tions controlled Again meet distinc- we holder. or whim of the easement tion State, App., Texas Civ. and Perkins v. this case tion between dism. 150 2d wr. S.W. application for writ of
Respondents 'reply to the in their Ap- judgment support of Civil to error seek authority Reclam- & peals upon of Brazos River Conservation Allen, 171 2d 141 Texas S.W. ation District v. holding appellee upon by that “If the lower court in was relied (respon- disposssess appellants (petitioner) not need to did gravel right it should dents) to mine of their property 1955 possession on December not taken have right appellants.' any to not such under terms which did Appellee’s leave taking attempt partially its thereafter to abandon damages resulting from the on in order to reduce allowed, pre- would, result in certainly if judice owners.” Appeals majority considered of the Court of Civil attempt partial
supplemental petition as to rights an effect abandon- of the easement and holds such ment or reduction accruing to prejudice reduction cannot be allowed because landowner. saying justices that: dissented from this One view supplemental petition simply “The less extensive made Appellеe included in such easement. actual had not take possession filing supplemental petition; of the land at time of and, matter, building steps for that took toward its transmis- any sion line at time the trial. A condemner can before abandon property, part, in after it whole or makes deposit possession provided quo and secures the status Surely prejudice can be cannot claim restored. the landowner here, having disturbed, quo appellants status been points prejudice.” in the mentioned do not even assert [ 767.] reply peti- position in their take the use, complete possession acquired tioner the full or limitations the easement with no reservations and control of by supplemental the amendment on December 1955 and any reduce petition improper it did not seek to “was because any property taken, or to dismiss abandon rights.” agree conflicting disposed contentions,
As to we are these brief, respondent’s dissenting justice. reply with the stated As principal the easement was “The value of the land over which ranging excavation, taken was such values for sand and n $1,572.50 according $1,007.50 respondent’s from witness according witness, pur- petitioner’s for other while its value ranged appears poses only It further $784.00 $487.50.” way develop and economical feasible *8 through dragline would the use of a be to remove the overbur- gravel den and extract the sand the land. However dragline, of because the crane used in connection with it employ would be hazardous to such machine when the transmis- electricity. carrying building heavy sion lines a were load of description of the towers called for in the easement and the stringing thereon, long they charged of wires as so were not with electricity, materially draglinе opera- would not interfere with tions, if actually but the lines were used for electric transmis- purposes sion power would have off to be shut in order that dragline operations safety. could be carried on with Under the rights by supplemental easement petition as amended gravel mining was bound to subordinate its use to the operations respondents May 1, until 1957. 5, 1955, petitioner deposited $1,500.00
Oh December with County County Clerk Dallas which was double the amount special thereupon award It commissioners. became entitled to make use of the easement in accordance with the rights description relating of the thereto which were set forth original petition. in the gravel mining operations It lawfully could have interfered with respondents making in use of the However, judgment County easement. of the Court at Law rendered 1956 based the amendment of the rights by supplemental petition eаsement effected expressly petitioner’s gravel mining operations subordinated use to such might by respondents. as undertaken be use of the removal of therefrom remained dominant over purposes the use May 1, for electric-transmission vesting judgment rights cannot be construed as additional petitioner. contrary, in the On the the amendment was a relin- quishment of certain or abandonment to which 504 description con- under easement entitled have been has original Undoubtedly a condemnor petition. tained in the sought portion land a to dismiss sought by rights originally condem- relinquish or to condemned injury done without this an easement when nation of Janes, 2d Texas 251 Thompson S.W. the landowner. 210, no Ray, App., 2d
953; Texas 215 S.W. Civ. Armendaiz v. respondents was shown. prejudice no history. this case writ occupied physically trial, not petitioner had the time At thereon that would fifty-foot strip and had made installatiоns mining operations. terms respondents’ Under the interfere year mine their allowed a judgment, were period of complaint time allowed gravel. is made as No position of the uses judgment nor of shift subjected under the decree. The Court’s the land would be argument “taking” that the respondents’ evidenced essence of irrevocable, money deposit on December not diminished could thereafter be easement and the of the condemnor. action Brazos and Reclamation opinion, River Conservation
In our Allen, Texas does not District v. That support position. case did involve mere relin- this right, appears of an con- quishment demning authority sought to dismiss the entire condemnation abandoning project the idea of not with but for proceedings, instituting attempt new action to secure an purpose of *9 (cid:127) money by paying less for it. This said: Court easement seeking to dismiss the first condemnation suit and “In with- October, 1940, deposit in the District was not under- draw the property. to abandon dam nearly completed were reservoir so District was and acquire position not in a compelled to land to sur- possession, possession, to take virtual render the by invoking jurisdiction acquired court it had of the and making deposit neither and it offered nor intended to sur- it.” render encourage policy of the law to
It is not the economic waste. original or the under the easement amendment rights gravel acquired prop- never thereto erty, respondents at all times remained the owners there- lay gravel deposits value in the sand the land’s chief and As of. rights thereon, any relinquishment of easement which would mining their respondents pur- to utilize for enable
505 arrangement against An poses economic waste. would militate preferred whereby is to mined and sold could be pay condemning authority for one which would force any benefit yet position in a to realize same and not be unnecessary If to interfere with therefrom. it were actually mining oprations time its lines should be until such transmitting electricity, an amendment utilized in it seems that and could be considered easement was called for in the nature a Brazos correction. River Conservation Allen, 2d 842. Reclamation District Texas 171 S.W. v. 141 required A land than condemnor should not to take more prior rights, unnecessary needs nor to con- secure special judg- firmation of or other commissioners’ award Court, authority, condemning ment in the absence showing prejudice (which some we here fail landowner find) unnecessary should be lands allowed to abandon such rights. Thompson Janes, or App., v. Texas 2d Civ. S.W. affirmed 151 Texas 2d 953. S.W. Levin, Company recent case of Union St. Electric Appeals,
Louis Missouri, Cоurt of persuasive authority supporting petitioner’s position here. The held power that an electric company was entitled amend description reducing of the easement thereof. the extent In the opinion, course of the it was said: question remains, however, “The whether amendment of
petition should proceeding be allowed in a for condemnation whereby privileges sought the condemner are limited, reduced and judgment granting and after the condem- rendered, nation has been the award of the Commissioners has paid by condemner, been possession and use of the ease- * * * place; so, ment have taken and if how and when. *.
“It appellant must be recalled that possession while did take of the easement to maintaining the extent that it did erect and is respondents’ wires land, over the yet, according it has not as evidence, any right avаiled itself of con- appellant had, which, so, tend appellant if desired to fore- go by amendment, to erect or maintain transmission un- wires *10 derground respondents’ on land. question exhaustively “The at hand and, was we discussed believe, positively settled so far as the instant case and the law Louis, Ry. of Missouri are concerned in St. K. & N. W. Co. v. Clark, Rehearing, 121 Mo. on S.W. 192 and 25 S.W. railroad, condemner, after a the In that case 26 L.R.A. condemnation, paid the award Commissioners into Court right-of-way by damages by the for the incurred the defendants con- trial the the appropriated the land condemned. At and and stipulation to construct a into the record demner offered landowners, not re- crossings two for the use the maintain * * * opinion In main quired petitioner the by the or the statutes. page at : ‘The com- in that pany said 198] case the Court [25 did, strip elect, a as to take to had the undoubted and, width; fit if it sees to reserve 100 feet in 50 feet instead of crossings use, open can see no reason for the defendant’s we two why may then the not made and the reservation be in the interest the retains that bases that defendant assessed on properly places very justly and restrictions land. statute by domain, not upon it does follow of eminent but the exercise bound; reasoning condemning company is correct the ' cases, go the law.’ in full extent of all the . rights reducing proper the “That the time and method of sought by at the a condemner would in condemnation suit by way jury, a and trial of the issue of before Corpora- Pipe petition, Line was held amendment Shell 2d Woolfolk, wherein tion v. 331 Mo. 53 S.W. appropriate said that less than Court condemner rights law, does, that fact is full under if he available damages; proper a issue that his element to consider on the appear with less than his full should exercise brought way certainty petition a ‘in the reasonable sought the condemner of amendment thereto.’ that case proof appropriation mere establish reduction of rights-of-way. condemner did and would not fence in not sufficient, held such reduced ease- This the Court was not by way petition. of amendment ment should have been privi- promises cited on oral to limit Cases based distinguished leges specifically pleaded are to be in- stant case.” representa- case a mere unilateral
This is in which oral condemning authority involved, tion as to future use accepted has is it the landowner award of nor one which compel special commissioners basis seeks to money deposited County payment him the appealed contrary, respondent landowners Clerk. To County has exercised no Law premises which interfere with over the v/ould actual dominion mining gravel, respondents’ entitled to
507 rights by County reduce his easement amendment in Court general “Right to abandon and at For a discussion of Law. proceedings,” see effect of eminent domain abandonment of Bobotes, Highway Dept. 180 So. Caro. South Carolina State following S.E. A.L.R. and annotation A.L.R. judgment Appeals is reversed and of the of Civil Court County
that of at Law No. 1 is affirmed. Court Opinion April delivered dissenting.
Mr. Justice Smith respectfully argument I dissent. I think the and authorities respondents’ reply application contained in to the writ of clearly my error so adopt state views that it is not amiss to portions argument my dissenting opinion. of such opinion following adopt
For of this I state- ment: original
Petitioner petition filed its for condemnation on petition November 1955. This described burdened and described the and uses have the erection and transmission maintenance line. petition prаyed for immediate condemnation
permanent respect easement with no time limitation as to beginning of the or the duration use thereof. duly The commissioners made and entered their decision and award.
Thereafter on December 1955 the in order to enter possession and take of the easement condemned in 3268, paid accordance with Article double the amount of the registry Court, award into the of the as shown the certificate deposit. stipulated It was also of the date 5, 1955. duly
Respondents objections their perfected filed their County appeal Law. com- the date April months after several
On the date five months after missioners’ award and almost sup- easement, respondent it called filed what asserting of said *12 its condem- plemental petition time for the first right respondents’ to require nation did interference with gravel removing sand and purpose land enter the for the necessary ar- 1, May promising until and make to rangements permit operations. to such special and
Respondents pleadings strike filed motion to such exceptions which were overruled. was principal the easement the land over which value of ranging gravel excavation,
taken was for such value sand and $1,572.50 according to respondents’ witness from to $1007.50 witness', pur- according petitioner’s for other to while value ranged poses only to $487.50. $784.00 petitioner opening an statement to Counsel made actually jury petitioner use the ease- to effect that would not respondents until had ment and that until gravel petitioner time to remove would their sand and and that anything necessary permit Respon- do remove same. to them to remarks, objected to same was dents such statement and overruled.
During petitioner permitted triаl to cross-examine witness, Dunn, respondents’ objections, defendants’ Bob over respondents possibility probability with reference to removing1 gravel May 1, prior 1957. sand and to permitted, objections respondents,
Petitioner was over to witness, testimony Wallace, introduce P. of its with reference G. right respondents to the offered said and to remove sand gravel prior 1,May to 1957. permitted, objections, respondents’
Petitioner was over to testimony witness, Hill, Jr., relating introduce of its R. John respondents’ right gravel prior May to sand to remove and charge jury trial court in its defined ease- definition, respondents’ taken and such ment added to over ob- specific jections, the instructions the easement taken did not right right respondents’ include the interfere with enter removing upon strip such for the and of land sand gravel make what- May 1, petitioner would and that opera- necessary рermit arrangements such ever still had and that such date tions after gravel long as such so and remove sand and enter the land construction, maintenance operations with the did not interfere operation line. the electric transmission argue permitted petitioner’s counsel to The trial court jury, respondents’ objections, that was not the going over respondents’ the sand to interfere with to remove May 1, do before and that gravel. everything necessary to allow them to remove finding returned their of dam- verdict amount ages by respondents, sustained thereon the court based condemning judgment fixing entered said said *13 damages respondents. to be awarded Appeals
The Court of Civil reversed and remanded the cause sustaining respondents’ all points appeal. of on stipulated
It is taking that the date 5, of was December taking The 1955. date of fixed, by this only case was not deposit the damages, by express stipulation but pаrties. Market values must be as determined of that date. Appeals Court correctly of Civil held that the land or by
interest
in land taken
condemnation must be definite and
paid
clear and must be
taking
for at the date of the
and damages
computed
must
as
Housing
of such date. See Miers v.
Authority
City Dallas,
(Texas
App.) ;
Civ.
Loumparoff Housing Authority
City Dallas, (Texas
Civ.
App.)
legal right their recover taking, as of the date of throughout 5, 1955, by fact reason of the December respon- contend that permitted
trial was to show damage 1, 1957, and under dents would suffer charge introduced, pleadings allowed, the evidence prevented jury court, arguments was and the counsel with refer- answering special to them issues submitted immediately before value of the land ence to market after the easement on December the market jury to find asked the one breath the court con- immediately the easement before and after values next, tells but, the court on demned May 1, taken until consider the easement not to are far as the value of sand at least as concerned, principal the land. value of De- as of condemns and takes the not need says that it will cember respondents are re- easement until legated later date and therefore is not later date. This to their of such law. guaranteed jury compensation by the Constitution condemning measured must be taken, they
taken at the and cannot be minimized time are mitigated probably not or the fact condemnor will acquired or will will exercise full extent the so not so until a later date. do *14 Thus, not it condemn is established that condemnor damages property fixed and take on one date then have the and precisely petitioner in this case a later This is what did date. allowing clearly in damages in the trial trial erred court. The court arguments pleadings, proof should and to the effect the date at a other than ascertained date December taking, clearly charging jury. and erred in so begun yet argues apparently had not Petitioner since it improvements the trial, of its on the land at the time construction market values and could determined at ignores 1,May clearly contention the later date of 1957. This taking 5, 1955, stipulated was December the date of fact contrary to the fixes the date of and law which on such is required deposit was made. date when correctly Appeals held that issues The Court of Civil of the date determined as values and must be market taking. any any way petitioners reduced have not no and there abandonment' taken the condemnation rights acquired by any the condem- easement or bring itself within nor. has failed Therefore Janes, Thompson 151 Texas the rule announced in 2d 953. part any has all of the ease- Petitioner not abandoned original by petitioner All of the uses taken ment condemned. filing original its condemnation remained after easement or the uses amendment. None of the burdens of the abandoned, to be made of the land were nor was the area of sought only land diminished. The amendment burdened begin postpone the time when would its construction original in its use form. Thus, part this is not a part casе where a of the land or a abandoned, by peti- of an easement has been the cases cited actual tioner wherein the of the land was abandoned application and the condemnation dismissed have here. every by petitioner condemning case cited authority actually
decided that it par- did not want to take land aor part sought ticular of same proceedings dismissal of the land, rightfully as to such and the Courts held that the con- demnor could not be forced to take such land.
But there is no such any abandonment here or dismissal of part petitioner only sought of the land or easement. Here begin limit the time in the it future to use the full ease- rights previously acquired. ment asking give
Petitioner is not up any part asking acquired really the easement “delayed for a —it acquired complete condemnation”. It the full and easement on give and then later up it does not or abandon rights, merely promises of such states it will *15 May 1, 1957, of attempt use such in an to make taking the date of as of such latter date. change
Petitioner seeks to well settled law as to measure- damages taking ment of the date using. to the date of for an case, practically every condemnation be whether otherwise, improvements are not con-
easement or actual future, that structed until sometime in the condemnor taking. is, some This interval between time after the date of improve- the time of the when date date actually ments considered are should never be constructed damages changing ascer- must well settled rule that be taking. of time tained as of vary such interval the date of should Nor damages by the to measured the rule are be property put. is to be property con- Under our condemnation laws title to easement, demned, simple, must whether fee or an limited condemning authority out vested in the and divested owner; one, requires remedy law and since this is a harsh full, paid complete adequate compensation as of the to be policy property time demands said is condemned. Public compensation damages definite as of a be ascertainable time. nothing law,
If the rule contended for were result, parties, the commis- but utter confusion could sioners, measure and the Courts could be sure of when the never always values would be reckoned. There some or beginning pro- time the condemnation interval between the ceedings use of the and the actual start construction or perhaps only a few taken —sometimes or easement -may elapse. days year in other or more so This while cases very must is the reason for the sound rule certain, taking, wit, and the fixed at a at the time time begins actually can have no when the construction or use time bearing upon the matter. begin
Only proceed- can decide condemnor when ings, easement, deposit payment when to take the when actually improvements construct into Court and when put has choice or dis- to use. The condemnee remedy being regard only matters —his cretion to these securing just compensation. require reasonably immediate If the condemnor does not easement, delay pro- the institution it should use forego ceedings, may delay the date of or it statutory deposit. possession and not make the to immediate condemning authority completely has exercised once the But *16 right condemned, acquire its it the title to the easement should not at a later be allowed to fix the or values date. Light
It Company- must be remembered the Texas Power & completed taking its of on this easement acquired right use, that time complete posses- the full and of
sion and easement, control of the or limita- reservations tions. Appeals correctly of Court Civil held that such amend- rights improper any
ment it seek since did not to reduce taken, any property rights any abandon or or to dismiss such rights.
In v. Brazos & Reclamation District River Conservation ,141 pointed this Allen Texas .2d Court 171 S.W errors, out that correct its while a condemnor has a purpose proceedings abandon the and do dismiss long prejudice it condemnation so landowner, as does not any it not does take action which not merely amount to such for the an abandonment dismissal reducing purpose pointed paid. to be Court (filing out that the action the District in that a second case proceedings “undertaking land) on the same was not an abandon the property” and there was no meaning procеeding intention to abandon the rule first stated. within the Thompson Janes, supra, this stated that a con- possession demnor who has not taken a had to dismiss project the suit “if the is to abandoned or the be location changed” might portion or it dismiss as the land “when purposes may it accomplished decides with less land be sought.” initially than was
Here, however, petitioner did not seek the abandonment or any dismissal of of the land or rule easement within the by compensa- contended for petitioner. condemned, land is When paid minerals, tion gravel, be including must for all of the land taken improvements, go up items make other damages may its value. The landowner is to such as entitled occasioned to all of the land over taken, just part. given opportunity not an was not to find the immediately value of the land after the condemna- tion of the easement as testi- burdened eаsement. The the date conclusively that as of December
mony shows under removed taking, could transmission line. around the electric *17 although that, a recognize majority opinion fails to an easement property or authority may a of public force sale dis- sell or compel an owner to public purpose, a it cannot for pose case) third (gravel to a in this part of a of such peti- the condemnor. party and then sell remainder original petition for recognized rule it filed tioner this when sought 14, petition it on November 1955. condemnation an elec- permanent easement for of a immediate condemnation by petition the uses line. In the tric transmission re- or reservation described. No land was to be were burdened (landowner) incon- cognition any to the condemnee of contained petitioner’s uses were sistent with any the ease- of pleadings. Yet, without abandonment court 5, 1955, the trial ment uses thus obtained on December pleadings which permitted supplemental to file operated legal deprived a fair trial effect the landowner of go jury prejudice. permitted to his It the condemnor to argue a forcefully charge,. armed with the of the court and by v. keeping permitted market not in State value with that Carpenter, 194, 604,89 I know of 126 Texas 2d gone afield jurisdiction so far case in or other that has this present the easement case. To allow to take mitigate 5, 1955, later on offering December then to May gravel prior respondents to allow to remove the 1, governed principles all which have 1957 violates the rules and Carpenter, proceedings condemnation least State v. since supra. court, respondents, objections The trial over charged jury as follows: does not
“You are further instructed that the easement taken right include the to interfere with defendant’s to enter upon strip upon any adjoining pur- said of land or land for the removing day pose gravel therefrom, until the 1st sand and May, 1957, plaintiff what- and that until that date will make arrangements operations, necessary permit ever such are and, further, May, day the 1st defendants after said, carry on upon will land and still have the to enter long as operations gravel, so sand and removal such construction, main- operations do not with the interfere n line.” operation tenance and said transmission electric (Emphasis added) charge weight It was the evidence. This was told, at least intimated respondents harmful remove respondents in fact be able 1, 1957, gravel May not removed and if sand and before line, the that, power before but after the construction charge gravel. could still remove the sand and was direct comment that the date of conclusively rather than shows 1955. The record that the sand after the construc- cannot removed tion of the line. The cannot reduced after the permits the fact that the to make condemnor the landowner premises some use of the condemned after condemnation. See Reports, 857, 861, 863; pp. p. 75 American Law 29 C.J.S. Domain; Loup
Sec. Eminent Little River Public District, Power 7 A.I.R. 2d 355. Neb. 36 N.W. equivalent unaccepted promise we have is an What and no *18 majority The mercy more. leaves the landowner at subject petitioner. to the unilateral control of the was said As Valley Irrigation District, in Pierce v. Platte Public Power & Neb. quoted approval by 2d a N.W. case Supreme Court of Loup Nebraska in Little v. River Power District, supra, “Proprietary rights reserved to the owner distinguished of the fee are to unacceptеd promises be something condemner to do future for benefit * * of the owner *. appropria- There is a distinction between an subject tion excepted to of the land owner therefrom and left thereby impose unaffected attempt in him and an to unaccepted promissory stipulations proposed agreements by condemning party undertakings respect per- to to be subsequent formed appropriation. to the time of un- The accepted promise proposal something to do future happening contingency of some does not affect the charac- ter or acquired extent of the required or the amount to paid just compensation.” compelled be The owner cannot be accept offer, compelled mere neither can he sell to a be party, part third property. of his majority opinion аgainst
The policy public in that market properties values at a must fixed involved be definite majority opinion time. In the event becomes law, nothing possibly but confusion interval result. The time can case) taking (December 5, 1955, between the date of in this case, begins (in the date when I actual use land this 1957) necessarily assume considered as a landowner, although reserved to the contract had his long passed. opinion places upon since the landowner duty salvage he can in order minimize onerous what damages. undisputed shows In our evidence case highest at- placed upon land involved can be value gravel. only case issue in the value tributed charge permitted purposes. of the court ignore any gravel all of the value of which would evidence after the constructed. be lost line was remanded for a new trial. This case should be reversed and Opinion April delivered 1958.
Rehearing overruled June 1958. Mrs. Jim Hammonds Et Al v. T. Et C. Hammonds Ux A-6715.
No. Decided 1958. April Rehearing June 11, overruled (313 603) Series