*1 injunction is temporary dertaking, and, therefore, I believe discharge absolutely I relators. void. would 7,1959. Opinion delivered October

Rehearing 11, 1959. November overruled Supply District River

Lower Nueces Cartwright Et Ux. Holman 1959. No. A-7153. Decided November 752) (328 S.W. 2d Series *2 Triplett, George Schneider & Schneider Charles all and C. of Dyer West, Lewright, Redford, Wood, Fischer, Burney & & Wood, Christi, Corpus petitioner. Nesbitt Allen and all of for holding Appeals The of Civil erred in that condemnor proceed proceedings would with the have filed county judge injected question, the title after into the proceedings by the condemnees had been in decided the district holding court than rather that condemnor could all have mat parties, including ter condemna damages tion and assessment of tried in the district court. And holding that condemnor cannot dismiss the condemnation proceedings. County, 102, Blair v. Archer 145 Texas 195 S.W. 348; Improvement Dist., 2d McInnis v. Brown 742, refused; Slack, Heirs 41 2d writ v. 258 S.W. McGee S.W. 2d 797. George Patton, Hardwick, West, William L. Morrill &

Beeville, Harry Schulze, Rivers, Clemens, J. Three Knight, Spencer Weiss, Antonio, & and Theo F. all Weiss of San for respondents. Thompson Janes, in rebuttal v. Cited 151 Texas 251 953; Railway Tuyrrell, Houston 2d Northshore Co. v.

S.W. 786; Brown, 2d Texas 98 S.W. Smith 2d 388. S.W. opinion delivered Court. Mr. Norvell Justice controlling question in this case is whether condemn- ing authority may, prior in an domain eminent proceedings award, pending properly dismiss an special before the condemnation and file suit in commissioners the Dis- seeking disputes a determination of title trict both which commissioners, before the had arisen in fixing compensation being such as was taken power condemning authority under the eminent do- main.

T,he opinion that was of of Civil litigation; these should be questions in this were involved Court, spe- District thereafter determined damages by cial should fix the occasioned commissioners therein had not of the lands or interests which been acquired the District. 319 2d 158. theretofore S.W. agreeing Appeals in its factual with the Court of Civil

While analysis case, “point of the we are of the no return” had reached in the not been before special commissioners no award had been made and because distinguishable hence this case from Brazos River Conserva- Allen, tion District v. wherein deposit appeared that an in accordance award possession therewith premises thus secured had been made *3 condemning authority. steps the refer to the taken We before special county judge the and the as the admin- commissioners proceedings they judicial. because are in no sense istrative recently and characteristics of such nature were by State, this considered and discussed Court in Pearson v. 935. belonging appears of lands to the Cart wright respondents by Supply was not obtained the Water Dis award, by agreement operating trict under an virtue of an award, way as an in much the same which was made or executed proceedings. the in connection with administrative It follows involved, then, Supply in of the title issue view Water Dis bring suit in the trict was entitled to District Court and have only questions of that court determine not title but also the Cartwrights compensation paid amount to be for lands rights by condemning them and taken in land owned authority. Ann. Texas Article Vernon’s Stats.

Accordingly portion Appeals’ judg- of the Court of Civil the District dismissal of reversed Court’s the sustaining ment which Water (upon in District Supply action District part abatement) That is affirmed. of the plea Court of affirming ancillary denial of an Appals’ judgment tem- Civil against respondents is injunction reversed and porary said from further restrained action in parties are here now pending disposition final administrative temporary District This pending in the Court. in- now cause order, subject being is pendente lite to modification junction, action provided such be consistent the District opinion govern this which will in the trial this cause District Court. grounds

A upon discussion the case involves both Appeals which the Civil based decision and certain supplementary arguments additional or respon- advanced dents in this Court. These two theses are not all consistent respects. instance, For the Court of was of the Civil extending dispute there beyond was a title a certain following 302.28-acre apparent tract as involved is from the excerpt opinion: from that Court’s

“Cartwrights they claim that the title from removed issue they disclaimer, condemnation suit because filed a but disclaimer is claim, not as broad as the and title still issues exists, disclaimer, remain. There still even with the rights over the as Water District duration the ease- ment on lands line disclaimer as described seventy-five level, ‘now’ below the foot contour and the land actually described metes and bounds in District’s disclaiming easement. The disclaimer silent about as to Water intermittently 2,147.82 District’s flood an additional acres of land seventy-five eighty-five between the foot level. disputes. any event, are There other In a disclaimer does not dismissal, one judg- entitle to a but entitles the claimant upon ment the disclaimer.”

Respondents, hand, on other insist there was no *4 petitioner raising precluded and that is from title issue. by The frame of a points case in this is Court determined application applications contained in the or for writs error. of party

A application may who files no not obtain a reversal or judgment Appeals, modification of a though aof of al- Court Civil urge ground he a different for an affirmance than that set forth in Appeals. of Civil Court Henwood, Vanover 785. S.W. 2d respondents application The filed no for writ of error and prayer judg- submitted no for modification or reversal of the Appeals. They ment of Civil stand before this Court simply asking judgment although they do, that such be affirmed by argument, suggest way grounds for affirmance different by Appeals.' from those selected the Court of Civil Any Appeals’ judgment modification of the predicated upon points Civil must be of error contained in the being Supply application error; District’s writ for only application complain case. District does not filed The reversing Appeals’ of the the order dis- Court of Civil action missal entered the District Hence the order Court. of the which, Appeals effect, upon Court of Civil reinstates the case docket, District modified or Court’s cannot be reversed kept us. And this circumstance should be mind in connection following points discussion. The effective raised petitioner relate to the action that is to taken the District upon case, is, the trial of the shall District Court compensation proceed to determine as well as title issues issues notify shall it or determine the title issues and then the com- proceed missioners of this action and allow them to point? from this entirely The statement of the Court of ade- Civil quate issue, for a determination of this in view of conten- but by respondents tions raised we will restate the basis of the controversy chronological in more or less order. subject litigation

The lands which are the matter of this lie general valley in the shape of the in the Nueces River of a bowl holding impounded by and include reservoirs water the con- strips struction of dams across the There are three river.

areas of land involved. On lies below the contour line of 75 feet above The lies sea level. second 75-foot and the 85-foot line. contour The third lies between the 85-foot and the 94-foot contour line. strips being, through speak, came

These into so to an ease- by respondents Cartwright ment contract executed Holman plus plans his the desire wife on December District, petitioner, Supply Lower Nueces River Water greater Corpus supply City water vide Christi and residing along the lower reaches of the Nueces. those Cartwright conveyed City easement of Cor- inundate and certain pus overflow lands Christi storage to a purposes. had reference reservoir water formed *5 which by placing across the Nueces was much a dam smaller existing Wesley presently Dam. than the Seale structure gave City perman- the to flood the and easement This acres, together submerge 302.28 with ently a tract of the overflow, during high flood, and flood times of and an water 2,147.82 additional acres land. Both were tracts described metes and bounds and sea the line of 75 feet above level was bounding 2,147.82- tract, referred to as the the 302.28-acre while lying acre tract was the 75-foot line and described as get the line 85 feet above level. From this instrument we sea the 75 and 85-foot contour lines. period forty duration of the “a easements was for

(40) years, 23, 1924), from (December and after the date hereof during easements, rights privileges time said and actively City, assigns used said successors and for said purposes; however, provided, being upon a cessation there period years in the (3) use thereof for a three continuous easements, rights said privileges to exist in and will cease city grantors, heirs, representatives and revert in full their assigns.” and Dam, Wesley larger

With erection of the Seale much existing and dam, more extensive structure than the then District, Lower Supply Nueces River Water successor in in- City Christi, sought Corpus procure terest an ease- covering 3,242.92 by Cartwright ment some acres of land owned storage purposes. acreage lay for water This between the 75 2,147.82 94-foot contour lines and included the acres cov- Being agreement ered the 1927 easement. unable to reach compensation proposed taking, as to for District on 1, 1957, proceedings November commenced condemnation requested County Judge appoint of Live Oak special partition. commissioners in

During before commissioners arose as to construction of easement. seems to Cartwright’s have been contention that in all events the ease- expired years forty ment trict, in after date thereof. The Dis- hand, on the other contended that easement was of a perpetual only by nature complete and would be terminated only legal nonuser. This not the difference that arose be- parties. seemingly question tween the There some as to not description whether or metes and detailed bounds 2,147.82-acre tracts 302.28 contained the 1927 ease- exactly correspond ment 85-foot contour lines descriptive purposes which referred were to for the Water application Supply appointment special District’s respondents also The record discloses commissioners. - domain the eminent condemnees administrative *6 thirty-eight special exceptions seeking filed appointment petition to the hearings

of commissioners and that after had place days, taken Supply for some District made Water application County Judge to the of Live Oak to instruct special commissioners to numerous matters of law in- cluding the extent and duration of the 1927 easement.

perhaps say becoming an understatement the case was complicated. fact, considering parties, In the contentions of the practical larger it would seem that as a matter a and more juncture suitable arena was called for. It was at this before any Supply award had been made that District Water sought special to discontinue commis- before sioners and filed suit in the District Court to settle both questions of compensa- title which had arisen and the amount of Cartwright paid tion property. to be for the of his petition The filed in the District all Court embraced three strips or areas of land above mentioned. The tract 302.28-acre lying of land below the specifically 75-foot contour line was brought petition. into the suit suit then involved 3,563.20 up lying acres of land made of 302.28 acres below contour; 2,147.82 lying 75-foot acres between the 75 and 85- lines, 1,113.10 lying foot contour acres between the 85 and 94-foot contour lines. In addition to a settlement of all title parties fixing compensa- controversies and the paid Cortwrights, Supply tion to be to the District sought ancillary pendente injunction prevent also lite special further before the commissioners.

Cartwright sought to abate suit. In this he was success- ful. The order of District was that: ordered, adjudged “It is further and decreed the Court plea jurisdiction that be, the defendants’ and in abatement they hereby sustained, hereby are and this cause is dismissed.” as a unit in

The cause was considered the District Court and Appeals. pointed And as above out the Court of Civil we are apply frame under the of the case to authorized not different though might we be of the even treatment there genuine portions as certain no the land exists extent, present purposes scope magni- For our involved. dispute is immaterial. the title ture of holding reasonably clear that the of the Court of

2 It is Civil upon theory filing was not based of an application appointment special commissioners was an admission of title which “altereth not” and forever binding upon condemning authority. Rather, that Court *7 that, although position took the were there title issues involved by Court, which must be determined the District the administra- proceedings having fixing tive purpose for their the the of compensation paid stage amount of to be had reached a where prejudicial it Upon permit would be to the to a landowner dismissal. point disagree this narrow we with the Court of Civil Appeals. Ordinarily, condemning authority may refuse take to property sought to pay be condemned and decline to finally by special

award either judicial fixed commissioners or Light Cole, tribunal. Texas Power & Co. v. 158 Texas 313 However, condemning pos- gains 2d 524. authority S.W. when the session land under and virtue condemnation and possession cannot thereafter restore to the and landowner thus quo, authority re-establish the status such cannot dismiss possession under which was ob- re-litigate damages. tained and seek to the matter of action Such prejudice per- would result the landowner obvious and if condemning damage authority try mitted would allow again again issue until acceptable it received favorable or prejudice award. This is the of Brazos River to the landowner rule which the Allen, Reclamation Conservation & Distict v. opinion In S.W. is based. that was said: apparent purpose

“It from the record that Dis- trict, filing seeking to dismiss first suit its motion instituting deposit withdraw which it made therein and in proceeding the second for condemnation of the same land as suit, together greater that first with involved in interest land, together that land with additional was to rid itself obligations might suit, the first arise there- proceeding prosecute a new as if the first suit from and to had errors, has the to correct its never been filed. A condemnor condemnation, abandon the to dismiss land, any not purpose but it exercise these rights prejudice of land owner.” > to' the Thompson holding was made this Court in

A similar Janes, 2d 953 wherein the Texas trustee for gained possession of the company lands under and the railroad stipulation parties virtue of entered into in connec- of the hearing adjournment special tion com- with an of the before missioners in condemnation. agreement creating

This Court treated this a situation existing possession similar to that in the Allen case where subsequent deposit, obtained award and and the rule of following applicable. case was held quotation This is made clear from from this in the case: Court’s Janes case, however, “In petitioner acquired this possession of agreement the four acres at the outset of the suit under an respondents and has not offered to return to them portion sought of that to be dismissed. The Court of Civil Appeals recognized of dismissal should not be prejudice condemnee, exercised principel ex- pressed in Brazos River Conservation & Reclamation District *8 Allen, that, and held as a precedent petitioner’s dismissal, condition he must surrending quo by respondents restore the possession status sought of the land to be dismissed.” “prejudice”

3 The referred to in the cited cases is not the advantage disadvantage, it, or however one view of hav- ing damages by special compared determined commissioners as jury. a Presumably, district court the dismissal of the proceedings petitioners administrative would at be costs and only practical plan provided difference between the for in Appeals’ judgment adopted by Court of Civil and the one designation authority us would in the be to settle the damage issues, including It issues. is our conclusion that all relating compensation, may properly those be determined in provisions the District Court in accordance with the of Article rights respondents’ prejudiced and that inwill no wise be by this action. however,

Respondents, earnestly petitioner contend that is raising precluded a title is from issue because it now in actual property. argument, physical possession accepted, This if judgment call an affirmance of the trial court’s would for or the parts, relating one of the cause into two to the severance 302.28 lying relating contour line and the other acres below 75-foot relief, however, lands in remainder of the Such to the litigation. granted by this the reasons cannot be heretofore respondents’ Consequently, pertinent contention is mentioned. suggests refusing an only as it alternative basis for insofar judgment disturb the Appeals. of the Court of Civil When so considered, the thesis is untenable. appears petitioner gates that Wesley has closed the on the Seale Dam and that this perhaps action will and has resulted flooding in the of a portion substantial involved litigation. in this Considering complications any incident to major flood impounding control project, perhaps or water it is not property may uncommon that effectually someone’s be prior “taken” completion of condemnation making or the of an Respondents say award therein. that this is existing the situation They in this case. do not contend that the through Supply possession District obtained of their lands award, agreement any procedure other connected proceedings. administrative condemnation On the other hand, they say petitioner that trespasser is naked and willful wholly right. without claim of they argue

From this basis if one who took deposit after award and in the administrative can- dismiss, certainly not trespasser then should denied proceedings. argument to dismiss the administrative This upon sequitor. Suppose based plaintiff non in condemnation application appointment filed an of commissioners one day upon following day seeks to dismiss it for the reason ownership actually of the land involved is vested in condemning authority. filing we insist Would application binding upon condemning was forever authority, re-acquire and it would have to the land condemna- filing tion application? because had made a mistake in *9 application The answer seems obvious. stands as an admis- only long sion of withdrawn, title so as it is not or some action is taken in pre- reference thereto which renders a withdrawal judicial opposing- party. logically It would that follow if the prejudice of disimssal be exercised without condemnee, exercised, then such exists and when operates to remove all admissions as to title which are inferred filing application from and appoint- incident to the of an special 3264, ment of commissioners under Article seq., et Vernon’s Ann. Civ. Stats.

Or, suppose upon that application motion to dismiss the setting ground condemning authority actually forth that the land, owned the the defendant would counter with a claim that premises. he owner This would not defeat

249 dispute over which a have would then motion dismiss. We jurisdiction. exclusive the district court has instances, matter does the hpyothetical where And in these bearing upon no possession figure? is that it has The answer has way that the situation or another unless one of, connection acquired been or under virtue of such a proceedings and dismissal the administrative ridding ceedings authority’s itself of would result prejudice. agreement the landowner’s unfavorable award 524; Light 2d Cole, Texas 313 S.W. Texas Power & Thompson v. 158 Co. 151 Texas 953; Brazos Janes, 2d v. S.W. Allen, Texas River Dist. Conservation & Reclamation v. Ry. 842; City, of Texas Mexico Orient 171 S.W. Kansas & Kirby, App., ref. Texas wr. Civ. wrong trespass To a or offense accom- denounce the as civil plishes might say a nothing. as murder is well One as ap- crime, heinous it should tried three commissioners be pointed by jury in county judge than the district rather tribunal, court, judicial As a court. matter of fact the district complicated proper place try is law- serious offenses and practical ad- preferred suits. It is to matter over the designed process primarily for conciliation ministrative which is fact, litigation. In purposes, and settlement than rather prejudiced seems one somewhat anamalous to contend that wrong against remedy only his for the sole reason Constitution, which, is 8, our lies with the under District Court original principal Article jurisdiction. Sec. court of Texas Constitution. judgment the Court of Civil

For the stated the reasons indicated, and as so modified is modified as hereinabove is affirmed. accordingly

It is so ordered. Opinion 11, 1959. delivered November dissenting. Mr. Justice Griffin agree majority opinion as it

I insofar holds *10 dispute which the land the 75-foot there is a title involves below in the condemnation line. land was included contour This never proceedings. pleadings District in condemnation The rights Judge any County no mention of made filed with the cause in' and proper to land below 75-foot contour line. A description sought land to be condemned is essential for jurisdiction to condemn to attach. The land below the 75-foot being contour line not in described the statement filed with County Judge, jurisdiction there was no in the condemnation County any commissioners in appeal nor on to make Court regard orders Housing City Authority thereto. Miers v. Dallas, 1954, 842; Texas Jur. Only 323. jurisdiction try Sec. the District has Court dispute. agree I holding could majority to the land except between the 75 and 94-foot contour lines fact possession the District had taken actual of all of this up land to the 88-foot contour at line the time of trial. The Wesley gates completed Seale Dam had been and its closed. By belonging Cartwrights this action the land to the had been up flooded beyond put to the 88-foot contour had line. District thus power Cartwrights its to return the land to when it sought County to dismiss its Court condemnation. law, As I condemning authority may understand the dis- miss, or any abandon its condemnation at time passed, provided sought before the title has to be it returns the land puts parties condemned to the condemnee. This all position they occupied same at the time the condemnation ceedings begun. general were I believe this to rule be of lav/. Ry. City, Kirby, The case of Kansas M. & O. Co. of Texas v. App., Texas Civ. ref. 150 S.W. wr. discusses the Railway condemnor to dismiss his action. In that case county Co. instituted condemnation hear court. A ing Railway paid had and an award made. in to the Co. county clerk double the amount and of the award went into souerht condemned and con roadway proceeded structed its thereon. The regular its Appeals course the case twice reached the Court of Civil county

and each time was sent for back court reversal, Railway action. After the second filed its motion Co. ground the condemnation on the it had dismiss changed longer sought line no needed land to be County condemned. The heard such motion to dismiss sought granted same insofar as condemnors condemn the County property, but left in the landowner’s action appropriation damages of his on account of judgment against proceeded to property.

251 judgment. the Railway issued to collect Co. had execution seeking injunction Railway present an the suit The Co. then filed asking grounds prevent judgment. Its to the of the collection the injunction judgment was void because were that dismiss motion to jurisdiction his Court lost its when inquiry. sustained; to an grounds material was not and other injunction refused. hearing On the District Court affirmed, saying: Appeals appeal the On Court of Civil proceeding “Appellant having in said suit instituted land, right posses way appellee’s and taken condemn the over of right proceeded way to construct sion of said thereunder and having land, appellee filed appellee’s said roadbed across damages answer, specifically pleading his his amended because appropriation of said of his said land before condemnation had, granting con appellant’s to dismiss its order motion not, suit, appellant demnation we of the could are taking nonsuit, upon voluntary this state of thus record, deprive appellee heard in said court of his to be damage; court, and in suit notwith said for his and that standing granted, jurisdiction hear said nonsuit retained damage, irrespective question said and determine the amount of the McKenzie, 54 Texas same. Howard v. Cun 189; ningham Williams, Wheatly, 184; v. v. Williams 261; Cyc. 15, 942, Statutes, pp. 943; Art. S.W. 4471, 3, Revised vol. p. 105, Sayles’ Supp. amended sudb. as the act of 477; City Coffin, App.,

n. of El v. 40 Texas Civ. Paso 502; ,C. Willson, Ry. Tacquard, 3 Civ. F. Co. S.W. G. & S. v. App. Cas. Ct. Sec. 141.”

This case of River Conservation & Brazos 842) (141 Reclamation Dist. Allen Texas authority City, Ry. case M. Texas as cited Kansas & O. ofCo. purpose proposition abandon for taking may property. In the be lost sough its con case the to abandon Allen District Reclamation the commissioners after award demnation by depositing taken possession of the land had made and been county provided in clerk the amount the award In addi Annotated Texas Civil Statutes. Article Vernon’s petition for tion, a new District had filed the Reclamation judge the same land of the same before condemnation county proceeding. landowner filed suit first court as the hearing prevent second condemna District Court judgment of the Court of affirmed suit. This Court tion pro- restraining District the Reclamation from Civil ceeding in the second suit until the first suit was condemnation finally disposed of. The had court said that the District ceeded so far with the first suit it would be unjust manifestly prejudicial permit to condemnee to condemnor to dismiss or suit over the abandon its condemnee’s protest. The court further said: *12 right relating do

“We not discuss the authorities the to to is, proceeding, abandon that the to abandon project purpose taking or property, of the the for here there is no proceeding intention to abandon the in that sense. The purpose is property to dismiss the first suit and to take the same property observed, proceeding. may other in a second be however, right project that the the to abandon or to abandon purpose the taking pos taking property may by the lost be of property. Ry. session the City Kirby, Kansas M. O.& Co. v. of App., 228, Texas application Civ. 150 S.W. for writ error of refused; Small, 826, App., Leonard v. Texas 2d Civ. 28 S.W. application refused; for writ of error Nevada M. R. Co. v. & Lissa, 125, Le 368; Guaranty 130 Mo. Loan Trust & Improvement Co. District, 1045; v. Helena 56, 148 Ark. 228 S.W. Fidelity Guaranty City Ashville, United States & Co. v. of Cir., 966; 85 F. 12, (Emphasis note 121 A.L.R. 72-76.” added). Highway

The case of Dept. Bobotes, South Carolina State (1936) 183, 165, together S.C. 185 S.E. 121 A.L.R. with the page thoroughly exhaustive annotation in 121 A.L.R. on dealing right discusses the cases of the condemnor to proceedings. dismiss or abandon his it In that said: case is *"* * stage point There is a well-defined of time of the or proceedings right vesting after which the is to abandon lost. The right compensation of pivotal the owner’s to is considered stage fact ceedings, which determines the incidence of that of the vesting right compensation and such of the cow- is taking complete. current property becomings vesting compensation completed and the taking reciprocal correlative, though are the latter de- taking complete, termines the former. The is said to become perfects compensation, so as far either of First, upon physical viewpoint, is, two entry an actual cases: that from appropriation by property the condemnor to contemplated public second, use; procedural stand- from is, point, ownership stage particular that that at which property

of the is and transferred to the divested condemning (Emphasis added.) party.” an general abandonment 16, Id, rule to when page One of a statute “that the absence may is be made stated be had, may fixing be the time within which discontinuance any time may at be discontinued eminent domain reciprocally vested rights parties have become before the of the * * 19, idem, Further, the cases page it is stated on holding groups, confirma- “one divided into two be rights parties are vested the award tion of holding that precluded, other and the is then abandonment has rights parties are not until award vested occupied, and until paid secured, land or or the been (Emphasis can such time the added.) be abandoned.” Constitution, prohibits Art. The Texas Sec. consent; compensation, adequate unless without provides State, taken, except such and further that when deposit compensation shall first made secured *13 money. majority permit to a condemnor To hold is to with possession complying property take and use with it without permits property provision. use of and Constitutional payment long use then the after and of its value long litigation. only also 16 and at the See end drawnout Domain, 772, 431, seq.; Texas Jur. pp. et 6 Eminent Sec. Nichols On 26.46; 8, 187-190, 26.42; Id., p. 204, Sec. C.J.S. Sec. Sec. b. majority and

The seeks to avoid the effect of Allen Thompson Janes, 1952, (Thompson cases 953) by saying possession 2d in each these cases S.W. of the legal, property gained by Allen was lawful means —in the legal award, making deposit case after there had been Thompson majority say in such and in the case consent. The proceed- not dismiss or abandon his cases condemnor ings restoring possession. say They in the case at bar without gain legally, trespassers possession and are the District did not they contour, and therefore do as to the land the 85-foot above possession prerequisite as to a dismissal have to restore not reasoning puts premium on unlawful or abandonment. This encourages premises illegal con- entries another’s into possession demning take of condemnee’s authorities to preserve his unlawfully wants to illegally and if the condemnor dismiss, abandon, change rea- tribunals. With this or to agree. soning I cannot disagreement point on which I am in is one other

There majority dispute and that is that a title as exists land above 75-foot contour line. the District filed its con- When demnation in County Court and made no mentían any rights, maght or claims it have easements above the line, Cartwrights’ 75-foot contour it admitted the title to such land, and cannot be heard to such in the condemna- proceedings. tion readily agree I this admission is only binding long so as the condemnation remain in the County County Court. The District must remain in the and cannot dismiss these since it has Cartwright’s quo land and is the status unable restore prior filing County it existed proceedings. filing By petition County of condemnation in the seeking the land between the 75 94-foot rights mentioning claiming contour lines any without under easement, the 1927 the District admitted the title of the Cart- wrights sought to all the land condemned. Houston North Ry. Tyrrell, 1936, Shore Co. v. Texas 98 S.W. 108 A.L.R. 1508. Tyrrell

The question. came ease to this court on certified Railway Company petition filed its for condemnation of County, certain land in the Harris Court-at-Law of Railway Company Texas. asked condemnation of sufficient right-of-way any land for their joined all claimants to strip alleged or title in this that it of land. It further operating right-of-way sought trains over to be condemned given right-of-way virtue of certain deeds theretofore claiming rights right-of-way some of those to own used: alleged pleadings right-of-way Its easement contained *14 a subsequent; Railway Company condition that the had com- plied every requirement and it contained in deed still the alleged Railway the owned easement. Certain claimants the Company subsequent had the and therefore violated conditions Railway Company right-of-way had lost the its title to favor of these claimants. appointed hearing and a had.

Commissioners were The con- objected ground demnee claimants to the on the Railway pleadings Company’s there was that under the no hearing jurisdiction proceed to before the commissioners. The award, appealed County proceeded to to an and condemnees the hearing that and much A was had in evi- Court-at-Law. insisting were on dence objection heard. The condemnees still their was proceed- jurisdiction hear the condemnation

255 ing. hearing that con- court ordered At the end of the the trial nothing the reason the cause “for demnors take and dismissed jurisdictional facts.” prove On that there a failure to was question as to the appeal a the of Civil certified juris- ruling that it did not have correctness of the trial court’s adopted opinion Judge Smedley, as the diction. an Court, trial had erred Supreme court answered failing jurisdiction. to take Railway was One of the of condemnees contentions regarding Company, pleadings its easement under in its deed, claiming a and therefore could not title to the land said: condemn under the condemnation statutes. The Court allegations proof question “The is: narrowed Do appellants’ present created assertion of title to the easement by operate acquisition the deed to their an uncondi as bar by party proceed tional cannot easement condemnation? ‘A property condemn land proceeding another and then in that same up paramount set or title in itself either prescription, dedication or otherwise.’ Lewis’ Eminent Domain (3rd Ed.) 441„ petitioner p. If in con Sec. vol. 1137. property, petition demnation the fee his should claims title to the Croman, Railway Company M. be dismissed. Colorado Colo. p. title in the condemnee is admitted the 256. ‘Unless county jurisdiction.’ court is without Brown McInnis v. Improvement (Texas App.) District No. 1 Civ. (application refused). for writ of error The reasons foregoing general rules are: That there is irreconcilable allegation

inconsistency the condemnor of title, title, himself, paramount entire in. and the proceeding; that condemnation of another necessity upon necessity, acquire rests there no can be owns; county already court without what one and that *” * * jurisdiction try property. real title to regard- discussing allegations Railway Company In said, ing existing deed, this “this easement under the allegation representation by appellants is in effect or admission Company] [Railway in the trial of the regarded ceeding respective parties shall be titles of the under deed were terminated and treated as if the title 2nd. at time of the trial.” Bot. of its conditions breach Railway col., upheld p. Com- 794. This Court *15 spite pleadings County pany in the in to condemn Court the deed. of title under condemnor, recognized It is such a well rule of that a law

by filing petition Court, County recognizes his title to property condemnee, be vested in and condemnor cannot question attack title, condemnee’s that I shall cite addi- no authorities, tional phase. nor write further on this my position: To summarize District cannot dismiss its ceedings County to condemn land Court between 75 and 94-foot contour lines because it has taken land, of said still posession, holds return same to cannot Cartwrights. Being required proceed with its condemna- tion County Court, of these lands in the District cannot be dispute Cartwright’s title, heard to and therefore no title dis- pute regarding can arise land the 75 and 94-foot being true, contour line. required This the District should be continue with its condemnation of the between the petition 75 and 94-foot contour line and its covering in District Court this land should dismissed. As be be, is, the land contour can below 75-foot line there only which can the District be determined in necessary and such can had condemnation as also be suit, provisions in that same District under the of Art. Ann. Vernon’s Texas Civ. Stats. Opinion delivered November 1959.

L. C. Smith State of Texas. 14, 1959. No. A-7437. Decided October

Rehearing November 1959. Overruled (328 294) 2d Series