Rehearing Denied in No. A-4854 June 8, 1955.
A history of the litigation presented by the two above causes is as follows:
In January of 1954, Mrs. Mary E. Adams, a feme sole, filed her suit in a district court of Harris County, Texas, in which, among other things, she alleged that the City of Houston and the Gulf Bitulithic Company were constructing a drain and storm sewer which would discharge an undue amount of water across her four-acres tract of land upon which she lived and sought an injunction to prevent such practice. Only the City answered, and in due time a hearing was had on January 22, 1954. The trial judge entered his order restraining and enjoining the defendants (City and Gulf) "from emptying water and other matter from the storm sewer now being constructed by said defendants, or one of them, onto the property of said plaintiff * * *," and fixed amount of bond to be given by Mrs. Adams. Mrs. Adams gave the bond and a temporary writ issued. No appeal was taken from this order. Gulf Bitulithic Company never has taken any part in these proceedings nor filed any pleadings.
It is stipulated that thereafter on some date between January 26, 1954 and February 5, 1954, the City filed its first amended original answer and cross-action wherein it lodged a number of exceptions to Mrs. Adams' pleadings; a general denial; pleadings joining issue as to the amount of water which will be discharged over Mrs. Adams' land by virtue of the construction of the sewer; and a cross-action seeking recovery of a natural easement for drainage and flow of surface waters across Mrs. Adams' land; condemnation of additional drainage rights across the land and "that it be permitted to immediately enter upon such rights and take possession of such rights and easements and exercise the same, upon such terms and security as the Courts may require, Cross-Plaintiff here and now offering to furnish and/or deposit such security, * * * upon the furnishing of such security upon the terms directed by the Court", and prayer for condemnation. This was accompanied by the City's motion to dissolve the temporary injunction, filed between the same dates as the above first amended original answer and cross-action. On February 18, 1954, the City filed its second
On March 18, 1954, a hearing was had upon this second amended original answer and cross-action. The court refused to fix the security to be furnished by the City or to allow the City to immediately enter upon Mrs. Adams' land, as the City claimed was authorized by Art. 3269, Revised Civil Statutes, Vernon's Ann.Civ.St. According to the transcript the first and only order ever entered of record upon these pleadings was on March 24, 1954 and after a hearing by the court on March 18, 1954. The City filed the transcript in the Court of Civil Appeals on April 13, 1954. After filing the record, and after Mrs. Adams had made her motion to dismiss the appeal, the City filed its petition for mandamus against Mrs. Adams and Honorable Roy F. Campbell, the trial judge, seeking a writ directing the judge to enter his order fixing the amount of security to be given by the City, and permitting the immediate entry by the City upon Mrs. Adams' property. The Court of Civil Appeals combined both cases and heard them at the same time. It entered its judgment dismissing the City's appeal and refusing the writ of mandamus. 269 S.W.2d 572. From this judgment the City applied for a writ of error as to that part dismissing its appeal, and also filed its original application for mandamus in this Court, seeking the same relief as it had sought in its application for mandamus in the Court of Civil Appeals. This mandamus practice is proper under our procedure of Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, and Dallas Railway & Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081.
We affirm the judgment of the Court of Civil Appeals in dismissing the City's appeal. We grant the application for mandamus for the reasons hereinafter stated.
The action of both courts below is sought to be sustained by Mrs. Adams upon the ground that the refusal of the trial judge to set the amount of security to be given by the City as a condition precedent for its entry upon Mrs. Adams' land is an interlocutory order, made in the course of the trial and can only be complained of upon an appeal after the final judgment. We sustain this contention.
One of the grounds upon which the trial court refused to determine the amount of security to be deposited by the City and to dissolve the temporary injunction against the City and permit it to go upon Mrs. Adams' land and take immediate possession thereof, and which action was affirmed by the Court of Civil Appeals in the majority opinion [269 S.W.2d 575], was that the City "having refused to waive its right to urge its claim of title to the land in dispute, cannot avail itself in its alternative condemnation actions of the statutory right of requiring the court to determine the amount of security which it should deposit as a pre-requisite to taking immediate possession of the land." (Emphasis added.) These rights were claimed by the City under Art. 3269, Vernon's Annotated Texas Civil Statutes, which reads as follows:
An examination of the legislative history of Art. 3269 will demonstrate that by the statute in its present form the Legislature intended to give to the condemnor, in cases falling within the terms of the statute, the right to urge alternative and inconsistent remedies in the same cause, and have both matters determined in one proceeding and at one time. The language above italicized by us very plainly says the condemnor does have such right. Art. 3269, as found in the Revised Civil Statutes, 1925, reads:
This article was amended by Acts, 42nd Leg. (1931), Reg.Sess., Ch. 245, p. 413 to read as above set out except it was not applicable to a condemnor who is plaintiff or intervenor. The caption of the bill provides that it is "An Act to amend Article 3269 of the Revised Civil Statutes of 1925, providing for procedure and practice in suits against those having the right of eminent domain for property, damages to property, or injunction, and declaring an emergency."
The emergency clause provides in part "that the present statutes do not give the courts sufficient latitude in the application of remedies in suits growing out of the taking and occupancy of property by those entitled to take and occupy the same under the powers of eminent domain, creates an emergency and an imperative public necessity * * *." A comparison of the two enactments will show that as originally enacted the statute was applicable only when condemning authorities were "sued for property or for damages to property"; and expressly provided that "the plea for condemnation shall be admission of the plaintiff's title to such property." The 1931 amendment made the statute applicable to injunction proceedings as well as suits for property and damages, and in lieu of the language that the plea for condemnation would be an admission of title, substituted the following: "* * * such petition or
Art. 3269 was further amended by Acts, 49th Leg., Reg.Sess. (1945), Ch. 259, p. 404 so as to make the statute applicable to a condemnor when it is plaintiff or intervenor, as well as a defendant.
In the recent case of Magee Heirs v. Slack, 1953, 152 Tex. 427, 258 S.W.2d 797, 803, this Court said, in discussing the jurisdiction of a district court to try the issue of condemnation of property upon an original petition seeking to recover the property in controversy and in the alternative seeking condemnation of the same property:
Our holding is that the City could pursue the alternative remedies of seeking to recover title to the land, and to condemn such land in the event it was unsuccessful in its attempt to recover title. As said in the case of Brazos River Conservation and Reclamation District v. Costello, 135 Tex. 307, 143 S.W.2d 577, 578(1), 130 A.L.R. 1220, "The history of the many laws enacted by the legislature of this State relating to the exercise of the right of eminent domain clearly shows that it is the policy of the legislature to liberalize the exercise of that power, rather than to restrict it."
The construction of Art. 3269 as heretofore made by this Court entitles the City to put up such security as may be determined by the trial court to protect Mrs. Adams and to give her adequate compensation for the value of her property taken. Upon the City's compliance with the terms and conditions as the trial court may prescribe as to such security for Mrs. Adams' compensation, it is entitled to take immediate possession of the property sought to be condemned.
In the case of Brazos River Conservation and Reclamation District v. Costello, supra, Costello and others obtained a temporary injunction against the District and its contractors engaged in the construction of a dam across the Brazos River, on the ground that to close the vents in such dam would result in the inundation of plaintiffs' properties and permanently deprive plaintiffs of them. The District moved to dissolve such injunction and contemporaneously
This Court gave an unqualified refusal to the application for writ of error in the case of Brazos River Gas Co. v. Brazos River Conservation & Reclamation District, 1941, 150 S.W.2d 350, 356, opinion by the Eastland Court of Civil Appeals. In that case it was sought to reverse the judgment of the trial court which had refused to grant an injunction against the District inundating and thereby taking the Gas Company's properties, prior to final determination of the condemnation proceedings. We realize that an injunction had been refused in that case, and such action was affirmed, while in the case at bar an injunction was granted; however, the Court of Civil Appeals construed our holding in the Costello case, supra, as a holding that no injunction should be granted when the condemnor makes adequate provision for security of the property owners under orders of the trial court. On the exact question, the Court of Civil Appeals said:
By our refusal of the application for writ of error, we approved this language as a correct statement of the law. Rule 483, Texas Rules of Civil Procedure; Heinatz v. Allen, 1949, 147 Tex. 512, 217 S.W.2d 994.
We now come to the manner and method of affording the City the relief to which we have held it is legally entitled. Although there is a difference of opinion among the members of the Court as to whether we should sustain the City's appeal, or whether we should grant it relief by issuance of a mandamus, a majority of the Court has directed that this opinion be written so as to grant the writ of mandamus, and we so hold. "* * * A writ of mandamus will lie to correct the action of a trial judge where he acts in abuse of his discretion, or in violation of his clear duty under the law, and there is no adequate remedy by appeal. Terrell v. Greene, 88 Tex. 539, 31 S.W. 631; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764." Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81, 82 (1,2). The duty of the trial judge to fix the amount of security to be given by the City was a ministerial duty and did not involve the use of discretion on the part of the trial court. This being true the City is entitled to have issued a writ of mandamus to afford it the rights given by virtue of Art. 3269. The issues on the merits made
The trial court is instructed to fix the amount of security to be deposited by the City in the registry of that court which is necessary to insure Mrs. Adams adequate compensation for her property taken and her damages suffered, together with such other requirements as may be deemed proper by the court to protect the rights of both parties to this litigation. When the City has made the deposit and has met all requirements of the law, and as contained in the court's order, the City shall be allowed immediately to take possession of its rights in Mrs. Adams' property, pending the final hearing of the cause on its merits. Writ of mandamus will issue as prayed for.