City of Houston v. Adams

CODY, Justice

(dissenting).

In my opinion, by force of Art. 3269, V.A.T.S., as amended in 1945, the City not only had the right to present in the alternative its action to condemn so much of Mrs. Adams’ land as was necessary to dispose of its storm waters, but also had the concomitant right to have the court fix and determine the amount of security proper for the payment of damages for the condemnation of th& property in question, and, upon the City making the required deposit, the City should be permitted to take possession of the land necessary to be condemned and proceed with its public improvement.

In this way the public work involved would not be held back or hampered to await the determination of who owned the property sought to be dedicated to the public use, the City or Mrs. Adams. The Supreme Court, in Brazos River Conservation and Reclamation Dist. v. Costello, 135 Tex. 307 , 143 S.W.2d 577, 580 , 130 A.L.R. 1220 , said, “Clearly the object of Article 3269 is to expedite the determination of all matters to which it relates. * ■ * * When the terms of this Act are read in connection with the provisions of the Constitution, it means that the court, in the exercise of its power, must require that every prerequisite of the Constitution ■ be fully complied with before a person’s property can be applied to public use.” The City has complied with every prerequisite of the Constitution in *578 that it has sought to have the court determine the amount of security which it must put up and it has offered to put up such security, unqualifiedly and unconditionally, upon the only terms which in law, equity or conscience, Mrs. Adams wotild be entitled to it, namely, that if the City fails to establish that it owns the land which in the alter-' native it seeks to condemn.

In principle the case before the Court does not differ from a case in which the condemning authority desires to condemn a certain specific tract of land for a public purpose but cannot determine whether same belongs to A or B, both of whom assert ownership thereto. In such case the condemning authority, I believe, would have the right to undertake to condemn the property necessary to be used .for a public purpose and pay into the court the value thereof, to be paid by the court to whom the court determines is the true owner of said tract of land. (I don’t mean to imply that public policy would not forbid the condemning authority from bringing suit to condemn numerous tracts of land and inter-plead various persons who have no claim whatever to certain of the specific tracts of land sought to be condemned. Such might easily, instead of promoting the avoidance of a multiplicity of suits, have the effect of promoting unnecessary, litigation burdensome to parties who have no claim whatever on certain of the tracts.)

Here the offer by the City to secure Mrs. Adams is not a 'qualified or a conditional offer. If she is found by the court to own the land, she is secured. If the City is found by the court to own the land, the Constitution does not.contemplate that she should be paid for the land which the City, owns and Art. 3269 has prescribed a spe-. cific rule governing the condemnation proceedings in such case. It is true that upon the hearing of Mrs: Adams’s application for a temporary injunction the court tentatively found, for the purpose of that hearing, that Mrs. Adams owned the title to the land in dispute and that she would be irreparably damaged if the City proceeded with- its contemplated public improvement. But if "upon final hearing it should be determined that Mrs. Adams owned the' fee simple title to the land involved, her ownership could not stand up against the right of the City to condemn her land for the purpose of casting surface and storm waters thereon. State v. Hale, 136 Tex. 29 , 146 S.W.2d 731 ; Soule v. Galveston County, Tex.Civ.App., 246 S.W.2d 491, 492 , (writ refused); State Constitution, Art. I, Sec. 5. Originally the right to condemn private property for public use was not conditioned upon any obligation to adequately compensate the owner. There is still no such thing as an equity to prevent the exercise of eminent domain where the condemning authority complies with all lawful prerequisites.

In my opinion, under the authority of the Costello case, supra, where, as here, the City has made an unqualified and unconditional offer to secure Mrs. Adams for the value of her property, if it is indeed her property, it has the right presently to take the same; and if the City fails to establish its title, Mrs. Adams is entitled to the security. The City could have no right, having once offered in the alternative to secure Mrs. Adams, to take down such security.

There is in my opinion a difference between inconsistent remedies and alternative remedies. Where a party must choose between inconsistent remedies, he must choose the right remedy at his peril. However, where a party is given alternative remedies, he has the- right to the alternative remedy if the primary remedy is shown not to be available to him. Here, by Statute, the condemning authority has the absolute right to. condemn. His failure to prove up title cannot defeat his right to condemn. But he has no need to condemn if he proves up title. There is no need to await the determination of the title contest, before proceeding with the condemnation. The title contest is only to determine whether the money which has been paid into court belongs to the condemning authority . or to the cross-defendant in the condemnation proceedings. The condemning authority’s right to expedite the condemnation does not have to await the de *579 termination of title. If 'Mrs. Adams owns the property sought to be -condemned, she gets its value.

Relator’s motion for rehearing should, in my opinion, be granted, and I dissent.