State v. Egger

347 S.W.2d 630, 1961 Tex. App. LEXIS 2403
CourtCourt of Appeals of Texas
DecidedJune 7, 1961
DocketNo. 10855
StatusPublished
Cited by1 cases

This text of 347 S.W.2d 630 (State v. Egger) 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
State v. Egger, 347 S.W.2d 630, 1961 Tex. App. LEXIS 2403 (Tex. Ct. App. 1961).

Opinion

GRAY, Justice.

The State of Texas instituted condemnation proceedings against appellee, R. L.. Egger and his wife Stella Egger, to condemn for -highway purposes 28.524 acres of land “more or less” out of a tract of 119* [631]*631acres owned by appellees and located in Williamson County.

Commissioners were appointed, an award was made, appellees filed objections to the award and this suit followed. However before the cause came on for trial on its merits appellees filed a plea in abatement and to the jurisdiction of the court whereby they attacked the sufficiency of the description of the land sought to be condemned. After hearing the plea and the evidence introduced the trial court sustained the plea and dismissed the State’s cause.

Findings of fact and conclusions of law were filed, which we quote:

“Findings of Fact
"1. The description of the property sought to be condemned is so indefinite ' and uncertain that the land cannot be identified with reasonable certainty.
“2. There is no instrument referred to in the property description that would make the property description definite and certain.
“3. There are no instruments recorded in the Deed Records, or other records, of Williamson County, Texas, that would make the property description definite and certain.
■ “4. The property description is so indefinite and uncertain that a surveyor, or other person skilled in such matters, could not take such description and definitely locate the land on the ground.
“Conclusions of Law
“1. The description of the property sought to be condemned does not meet the test of legal sufficiency.
“2. This court does not have jurisdiction of this cause of action because the description of the property sought to be condemned does not meet the test of legal sufficiency.”

The property in question is described as follows:

“Being a part of the Wiley Harris Survey^ Williamson County, Texas, and more particularly described as follows :
“Beginning at a point in the north line, said point being on the centerline Of U. S. Highway 81 (Interstate) at Engineer’s Station 1371 + 73.5 as located by the Texas Highway Department, and also being in the south city limit line of Round Rock;” (A description by metes and bounds follows)

The evidence shows that Round Rock is located on the Wiley Harris Survey and that appellees’ property lies south of Round Rock. It also shows that the State has taken-possession of the land and that a highway has been constructed on it.

The beginning point in the above land description depends solely on “Engineers’ Station 1371 + 73.5 as located by the Texas Highway Department.” The point in the “north line” is located as being in the center line of highway 81 and also in the south city limit line of Round Rock.

The evidence shows that highway 81 is east of appellees’ house. It also shows that the land in question and over which a highway has been constructed and is now in use is west of appellees’ house. The State in its brief refers to this highway as “Interstate Highway 35” and the evidence shows it is so marked. The evidence does not locate the south city limit line of Round Rock and does not show that highway 35 crosses that line and does not show that highway 81 does so. The evidence also shows that the term “center line” of a highway does not always have a definite meaning, but that it may be the center of the right of way, it may be the center of two through lanes but that it is always the center of the right of way or of the highway itself.

The surveying testimony in the record shows;

[632]*632Appellees’ witness testified that in order to find Engineers’ Station 1371 + 73.5 a surveyor would have to get a “strip map” which would show a zero point and from that he could find the Engineers’ Station but said the strip map would not show him the station. He said:

“Q. You know what is meant by an engineer’s station, don’t you? A. Yes, sir.
“Q. You know that it is a point, don’t you? A. Yes, sir.
“Q. Point on the ground? A. Yes, sir.
“Q. You know if you had a contract to stake this up for a client, you would know where to find and to locate that station, would you not? A. I would have to get supplementary information—
“Q. You would know— A. —strip maps, yes, sir.
“Q. Where would you go to get that information? A. Well, I would try the resident engineer’s office here first and then if they didn’t have that, then I would probably have to go to Austin.
“Q. Have you ever done that in the past? A. Yes.”

The State’s witness testified:

“Q. Now, in order to locate your point of beginning, say that you are a private surveyor; how would you go about locating the point of beginning .in this case? A. I would make a trip to Austin and get a right-of-way map, and from the information on the right-of-way map, with these field notes, I should be able to locate that piece of property without any trouble at all.
“Q. Would it be necessary for you to go to Austin in order to find out where that engineer’s station is locat- ' ed ? A. I would write and request the information.
“Q. Could you go out to the point designated here and find this stake? A. If it was in the ground, yes, sir.
“Q. * * * I believe you have already answered my question that you could not, from the wording right there in front of you, go and stake this land out? A. No, sir, I don’t think so.”

There is some testimony as to a stake being set at the Engineer’s Station, however it is all hearsay because no witness testified that he put a stake there or that he saw a stake at the point. Moreover there is no call for a stake for which reason the evidence is of no probative force. Whitmore v. McNally, Tex.Civ.App., 39 S.W.2d 633.

What we have said shows conclusively that resort must be had to extrinsic evidence to locate the beginning point supra. The question then is: Is the ambiguity in the description patent or latent? If it is the former then parol or extrinsic evidence is not admissible to explain the defect in description but if it is the latter then such evidence is admissible. 19 Tex.Jur.2d Sec. 165, p. 487 et seq. It is there said:

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Cite This Page — Counsel Stack

Bluebook (online)
347 S.W.2d 630, 1961 Tex. App. LEXIS 2403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-egger-texapp-1961.