Storey v. Harris

BATEMAN, Justice. The only question presented by this application for mandamus is whether in a condemnation proceeding the objections of the property owner to the commissioners’ award of damages were timely filed. The relators are the owners of the property sought to be condemned by the City of Irving, a “home rule” city. The special commissioners filed an award to which re-lators wished to object and thus obtain a trial in court as to the amount of their damages. Their objections were filed within the time specified by Article 3266, subdivision 6 *, but not within the ten days allowed by Article 1206, subdivision (d). The Honorable Fred Red Harris, Judge of the County Court at Law No. 3 of Dallas County, Texas, in which the report of the commissioners and the objections were filed, dismissed the objections and adopted the award of the commissioners as the judgment of the court pursuant to subdivision (d) of Article 1206. Title’ 52, comprising Articles 3264-3271, entitled “Eminent Domain,” is said to [850] “cover the subject of eminent domain,” and to constitute “a complete system in itself.” City of Houston v. Derby, 215 S.W.2d 690, 692, 693 (Tex.Civ.App., Galveston 1948, writ ref’d). Subdivision 6 of Article 3266 provides that if either party be dissatisfied with the decision of the commissioners, “ * * * such party may, on or before the first Monday following the 20th day after the same has been filed with the county judge, file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.” As stated, the relators filed their objections to the decision of the commissioners within the period so specified. Chapter 17, of Title 28, Articles 1201 et seq., entitled “Condemnation for Highways,” also gives cities having more than one thousand inhabitants (and the City of Irving is in this category) the power to condemn property to “lay out, open, establish, widen, straighten, or extend any highway within its limits.” Article 1206, entitled “Condemnation commission,” contains general provisions, and the first paragraph of subdivision (d) thereof is: “Any party affected by the decision of said Commission who shall be dissatisfied therewith, shall, within ten days after the filing of said report with said Judge, file in his Court in opposition thereto, setting forth in writing the particular cause or causes of objection, and thereupon the adverse party or parties shall be cited and said cause shall be tried and decided as other civil causes in said Court. If no objections are filed with said Judge within said time, he shall cause the said report to be entered in the Minutes of his Court and make the same the judgment thereof, and may issue the necessary process to enforce same.” For many years both statutes provided that objections to the decision of the commissioners should be filed within ten days after the filing of the decision. However, in 1961 the 57th Legislature amended subdivision 6 of Article 3266 to increase the time to twenty days; and in 1965 the 59th Legislature rewrote subdivision 6 to read as it now appears. Unfortunately, and perhaps through oversight, no change was made in the ten-day rule of subdivision (d) of Article 1206. The relators contend forcefully in their briefs and in oral argument that the circumstances surrounding the institution of these condemnation proceedings, and the words used by the City Attorney indicate an intention on the part of the City of Irving to condemn relators’ property under the general Eminent Domain statutes (Articles 3264 et seq.), and that the city’s interposition of the ten-day rule of Article 1206 is an afterthought. However, we do not think this question may properly be decided on the basis of the mental processes or intention of the officials of the City of Irving as to which of the two sets of statutes should govern the proceeding unless such intention appears in the proceedings instituted by them. The clear purpose of the proceeding was to take from relators their real property for public use, and unless there was something on the face of the proceedings or the notice to relators to indicate otherwise, we think the relators were well within their rights to consider the proceeding as one filed under the general condemnation statutes (Articles 3264 et seq.) and file their objections within the period allowed thereby. The City’s original Statement for Condemnation did not state that it was filed under any particular statute; it merely alleged that under its Home Rule Charter it had the power to appropriate and take any private property for the purpose of opening, establishing, extending, constructing and maintaining streets and freeways within or without the city, and [851] “has the power to appropriate and take any private property within or without said city for any municipal purpose that may be deemed necessary by the governing body of said city for the use and benefit of the public and the inhabitants of said city,” and that the city had determined the necessity for taking the relators’ property “for the following public purpose or purposes, to wit: parking and off-ramp access street purposes.” The Order Appointing Commissioners, using the language of Article 3264, appoints three disinterested freeholders of Dallas County, Texas as “Special Commissioners to assess the damages in accordance with law.” (Articles 1201 et seq., speak only of “commissioners” and “commission.”) Each of them filed an oath reciting that he had been appointed “a Special Commissioner.” The Order Setting Hearing Before Commissioners spoke of them as “Special Commissioners” and they signed the same as such. The Notice of Hearing served on relators contains no language to indicate that the proceeding was filed under any statute other than Articles 3264 et seq. The Award of Commissioners speaks of them as “Special Commissioners” and they signed the same as such. Moreover, the city’s home rule charter (of which we take judicial notice under Article 1174) in Section 10, under the heading “Right of Eminent Domain,” provides in part: “In all cases where the city seeks to exercise the power of eminent domain it shall be controlled as nearly as practicable by the laws governing the condemnation of property by railroad corporations in any such cases * * We know of no “laws governing the condemnation of property by railroad corporations,” and none has been called to our attention, except Articles 3264 et seq. The very first sentence of Article 3264, entitled “Procedure,” begins: “The exercise of the right of eminent domain shall in all cases be governed by the following rules It is also noted that subdivision (b) of Article 1206 provides that notice of the hearing before the commission shall be given by publication in a newspaper of general circulation, in addition to service of notice on the owners, lienholders, etc. No such requirement of publication of notice is found in Articles 3264 et seq., and no evidence of such publication appears in the record before us. In our opinion, therefore, any reasonable person served with notice similar to that served on relators herein, and examining all of the said proceedings filed up to the time of such notice, as well as the city’s home rule charter, would be fully justified in regarding the proceedings as having been instituted under and governed by Articles 3264 et seq. That being true, rela-tors should be held to be within time in filing their objections. To hold otherwise would deny relators the right to have a jury determine the value of their land because their objections to the award, while timely filed under one statute, were not timely under another. This harsh result should be avoided if possible, and we think it is possible and entirely proper to avoid it, not only on the grounds mentioned above, but also under the rule announced in City of Houston v. Derby, 215 S.W.2d 690, 693 (Tex.Civ.App., Galveston 1948, writ ref’d), as follows: “The protection which the law has erected for the benefit of the citizen as against the exercise of the power of condemnation should be liberally construed. Stated otherwise, the power of eminent domain must be strictly construed against those corporations and arms of the State vested therewith.” To the same effect, see 26 Am.Jur.2d, Emiment Domain, § 18, p. 659; Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 831 (1958). [852] The first sentence of Article 1201 is: “Cities having more than one thousand inhabitants under the preceding Federal census may proceed in accordance with the provisions hereof, independently of and without reference to any other applicable law or charter provision, present or future, which, however, shall remain in force as alternative methods’’ Thus, the City could have proceeded under either set of statutes, and since it was not made clear which was being followed the property owner was entitled to act under the statute providing the longer period in which to file objections. The writ of mandamus is granted and the judge of the County Court at Law No. 3 of Dallas County is directed to set aside the order of August 6, 1971, dismissing the objections to the award of the commissioners and making the said award the judgment of the court, and to set the cause for trial on its merits. CLAUDE WILLIAMS, C. J., dissents and files opinion. GUITTARD, J., concurs and files opinion. Footnotes [*] All Articles mentioned in the opinion will be found in Vernon’s Annotated Civil Statutes of Texas; all Rules mentioned will be found in Vernon’s Texas Rules of Civil Procedure; and all italics in the opinion are ours unless otherwise indicated.