Harang v. State Ex Rel. City of West Columbia

466 S.W.2d 8, 1971 Tex. App. LEXIS 2901
CourtCourt of Appeals of Texas
DecidedMarch 24, 1971
Docket464
StatusPublished
Cited by9 cases

This text of 466 S.W.2d 8 (Harang v. State Ex Rel. City of West Columbia) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harang v. State Ex Rel. City of West Columbia, 466 S.W.2d 8, 1971 Tex. App. LEXIS 2901 (Tex. Ct. App. 1971).

Opinion

TUNKS, Chief Justice.

This is a quo warranto proceeding by which the State of Texas, on the relation of the City of West Columbia, and the City of Brazoria, challenges the validity of the incorporation of the village of Wild Peach in Brazoria County, Texas. The mayor of the village, the marshall, the secretary and the alderman were named as defendants. The substance of the allegations by the State was to the effect that those defendants were unlawfully asserting the right to exercise functions as officers of the village because there had been no lawful incorporation of such village.

There is a rural area in Brazoria County sometimes called the Wild Peach community. It lies generally between the City of West Columbia and the City of Brazoria and between State Highway 36 and the San Bernard River. A copy of a map of such area, which map was received in evidence, is attached to this opinion as an exhibit and will be referred to [see appendix].

In October and November of 1969, the Cities of West Columbia and Brazoria jointly purchased the tract of land consisting of about 100 acres in the Wild Peach area. Those 100 acres lie within the shaded area of the attached map and to the south of the road intersection marked “beg. point parcels one & five.” (Throughout the trial the lawyers interrogated witnesses with reference to exhibits such as the attached map. In doing so they asked witnesses questions with reference to “this” area to which they pointed. Often the interrogation made mention of no reference point by which this Court can identify “this” area. Such interrogation makes it impossible to locate exactly the 100 acres bought by the two cities). The land so bought by the two cities was to be used as a land-fill garbage disposal area. At the time such land was bought it did not lie within the boundaries of any municipal corporation.

On November 17, 1969, 25 residents of the Wild Peach area filed a petition with the County Judge of Brazoria County asking that an election be called for incorporation of the village of Wild Peach. The map, a copy of which is the exhibit attached to this opinion, was filed with such petition as representing the area of the village sought to be incorporated. There was also a metes and bounds description given of that area. That area is the shaded area of the map attached hereto. The petition so filed was pursuant to the terms of Art. 1134. (Statutes referred to herein by Article number refer to Vernon’s Annotated Texas Statutes). On November 21, 1969, the county judge signed an election order provided for by Art. 1136, directing that the incorporation election be held on December 6, 1969. Such election was held and the proposition for incorporation carried by vote of 73 for to 21 against. On December 8, 1969, the county judge signed an order declaring and certifying the results of the election as contemplated by Art. 1139. After such incorporation the village of Wild Peach passed an ordinance, the effect of which prohibited West Columbia and Brazoria from dumping garbage in their landfill area.

The bases of the State’s attack upon the validity of the incorporation in question may be summarized as follows: first, the area proposed to be incorporated did not constitute nor include an existing village of more than 200 inhabitants. Second, if there were an existing village of over 200 inhabitants in the vicinity of the proposed *11 corporation, the area included within the proposed incorporation included only part of that village and arbitrarily excluded other parts. Third, the area proposed to be incorporated included territory not intended to be used for strictly town purposes. In response to special issues submitted, the jury failed to find for the State as to the first two of those attacks but did find favorably to the last one. Upon the basis of that finding the trial court rendered judgment that the attempted incorporation was “null and void and of no force and effect.” The defendants have appealed, challenging the evidentiary support of the jury’s finding that the area to be incorporated included territory not intended to be used for town purposes and also challenging the sufficiency of that finding as a basis for the trial court’s judgment. The appellee contends not only that the evidence supports the jury’s finding as to its third basis of attack and that such finding justified the trial court’s judgment, but also that the evidence establishes its first and second bases of attack as a matter of law.

The procedures provided by Chapter 11, Title 28, of the Revised Civil Statutes of Texas of 1925 (Art. 1133 through 1153a) for incorporation of a town or village contemplate the existence of an actual town or village. By following those procedures no new town or village is created, but an existing town or village is given corporate status. Ewing v. State, 81 Tex. 172, 16 S.W. 872.

The unusual configuration of the area sought in this case to be incorporated as a village is, itself, enough to raise a question as to whether that area represents an existing village. The area lies adjacent to, but does not include, except for a few connecting strips, about 15 miles of county roads. It lies adjacent to about four miles of County Road 353. For about a mile and one-half of that extent the area is adjacent to only one side of that road. There are about 100 habitations and 374 inhabitants in the entire area. There is one small filling station-grocery combination and one church. The only part of the area having any substantial bulk, as distinguished from strips lying alongside the road, is the comparative large shaded area in the northern portion of the attached map. That area has in it only seven homes.

The definitions of the words “town” and “village” as used in incorporation statutes, have long given the courts difficulty. Their general characteristics have been described. A town or a village is an assemblage of habitations. A town is larger than a village and smaller than a city. A village is larger than a hamlet. Both have, to some degree, an urban character as distinguished from a rural character. There should be some degree of unity and proximity between the habitations so assembled to constitute a town or village. To be entitled to incorporate, the area of the town or village should be susceptible of receiving some municipal services. State ex rel. Taylor v. Eidson, 76 Tex. 302, 13 S.W. 263. See Mandelker, Standards for Municipal Incorporations on the Urban Fringe, 36 Tex.L.Rev. 272.

A map larger and more detailed than the one attached to this opinion was received in evidence. It showed the general pattern of the residential development of an area of about 50 square miles, which area included the Wild Peach community. That pattern consisted of homes on tracts of from one to 25 acres. Those homes were situated upon the various county roads within the area. The population of the entire area shown upon such map was 1,500 to 2,000. The entire community could not have been incorporated because it did not meet the population density requirement of Art. 971. It was admittedly to meet the population-area requirements of the statutes that the incorporators, at *12 many points, limited the area to be included in the incorporation to strips alongside the county roads. In some instances there are comparatively compact clusters of ten to twenty houses in the area to be incorporated. Those clusters are widely separated from each other. In some instances there is as much as a mile of road from one house to the next.

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466 S.W.2d 8, 1971 Tex. App. LEXIS 2901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harang-v-state-ex-rel-city-of-west-columbia-texapp-1971.