Citations
- 292 S.W.2d 897
Full opinion text
DIXON, Chief Justice. ‘ .
This .is an appeal by landowners who, following a jury verdict in a condemnation-proceeding, were awarded $6,174 for 1.62 acres of farm land in Dallas County, Texas.
Appellee Gulf, Colorado & Santa- Fe Railway Company as petitioner brought action against Bernice Ullman Couch, Independent Executrix of the Estate of Selma Ullman, Deceased, Jean Adele Lowe and her husband Alfred S-. Lowe III, and Tom Campbell, alleged owners of a'35-lacre tract of land: Jean Adele Lowe is the daughter of Bernice Couch. In the will of Selma Ullman, -deceased, she is named- as the devisee of-the 35-acre tract. The Railroad sought a strip of land across. appellants’ property for right of way purposes in constructing its new main line, extension from Sanger, Texas to. Dallas,' Texas. Appel-lee has made a Settlement with Tom Campbell who no longer appears in the proceedings.
In their points on appeal I to VII inclusive appellants complain of occurrences which took place prior to the trial in County-Court. .They assert that the County Court did not have jurisdiction to .try the case because, (1) the special commissioners were disqualified as a matter of law; (2) due and .proper notice was not served on appellants; (3) the returns showing notice were not properly filed; (4) the special commissioners had not made a statement .of cost, nor filed a cost bill promptly with the court, nor were all costs paid; (5) petitioner had not tried to reach an agreement with appellants as to the value of the land prior to institution of the proceedings; (6) there was never a duly constituted board of special commissioners; and (7) there were numerous failures or. refusals to follow the- condemnation statutes.
At the time the commissioners were appointed the court stated that it had beqn found impossible to obtain the services of competent men on condemnation boards in Dallas County for the statutory fee of $3 per day and that it had become customary to allow h reasonable fee in sums varying from $25 to $50. The court then announced that in this case he would allow the commissioners a flat 'fee of $50 to be paid by the condemning authority alone.'
Mrs. Couch and her daughter Mrs. Lowe vyere present at the hearing-before the commissioners on March. 18⅛ 1955.; They.were not represented by, counsel.. ■ Mrs. Couch, having had some legal training,. acted for both of them., .She .expressly-agreed and .consented to the payment; of. a $50 fee, to each of the commissioners.. .•
At the same hearing, March 18, 1955, ■counsel for appellee inquired whether there were any objections' - to- the: qualifications of the commissioners, Mrs. Couch then 'questioned the' commissioners. She . developed that one- of the commissioners had previously" served in'- other, condemnation suits involving the Santa Fe Railway and had been paid a fee of' $50 by ■ the Rail'way for his' services. Mrs. Couch therefore objected to his serving■ -in' this case and - he was- thereupon excused. But it was expressly agreed by the parties .that the hearing might proceed before the other two. commissioners:- The hearing then proceeded. Mrs. Couch herself testified and introduced an expert witness who testified the land was worth $4,000 per acre.. The two-man board of’ commissioners made an award of' $6,240 for the 1.62 acres' being condemned.
Notice of the proceedings had been duly served in Dallas County, Texas on .Bernice Couch, Independent Executrix, and in Chicago, Ill., on Jean.Adele Lowe and hqr husband Alfred S. Lowe. The estate was still under the administration and control of Mrs. Couch, Independent Executrix. 'It'had not been distributed. As'already-stated, Mrs. Couch and Mrs. Lowe were present iri 'person at the hearing before the -commissioners' on March 18, 1955. ' They were the parties who objected tb the com‘missioners’ awárd arid”asked 'for a trial de novo in the 'County'Court. At the trial in the County Court on October 19, 1955, all; of the appellants were represerited by counsel. ‘
¡As to' the costs, the record shows that all ■costs were paid'April 13, 1955'by-appellee.
The record also shows that, Mrs. 'Couch as Independent Executrix had been ■offered' by appellee.