No. 7767.
BRAZOS RIVER CONSERVATION .~ND RECLAMATION DISTRICT ET AL.,
Plaintiffs in Error,
v.
E. P. COSTELLO ET AL.,
Defendants in Error.
From Palo Pint& County,
Eleventh District.
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This suit involves the authority of the Brazos River Conserva­tion
ana.. Reclamation District, which was created directly by the
legislature (by virtue of Local ~md Special Laws 41st Leg., 1929,
2d Called Sess., c. 13, sec. 51 Vernon's Ann. Civ. St. art. 8194
note; General and Special La~vs 44th Leg., 1935, lst Called Sess.,
c. 3681 sec. 5, Vernon's Ann. Civ. St. art. 8194 note; Constitution,
art lo, sec. 591 adopted in 1917), to exercise the power of eminent
domain, on a cross action filed in the District Court under the pro­Visions
of Article 3269 as amended, Vernon's Ann. Civ. St. The tri ~l
court held, in effect, that the Brazos River Conservation nnd Reclam­ation
District had no right to condemn by cross action under .Article
3269. The juCtgment of the trinl court was affirm::3d by the Court of
Civil Appeo.ls at Eastland. 142 s. w. (2d) 414, A writ of erroi• was
granted.
The validity of the Act creating the Brazos River Conservation
an6. Reclarna tion District was sustained by this Court in Brazos River
Conservation and Reclamation District v. McCraw, Attorney Genera~,
126 Tex. 5061 91 s. w. (2d) 665. For a detailed statement of the
history of the Act and the creation of such District, we refer to
the opinion r endered in that c~se.
The District issued bonds and proceeded to c arry out its.plan
of reclrurw.tion, and was constructing a dam e.cross the Brazos R~ver
in Palo P'into County, Texas. E. P. Costello and others obtained a
temporary writ of 1njunction against the District and against the con­tractor
engR.ged in constructing such dam , on the ground that the
District W<-'.s about to close the vents in the dam and that to do this
would result in overflowing the lands belonging to plaintiffs adjacent
to the darn. The writ was issued without a hearing thereon, Hnd follow·
ing the i s suance thereof the District moved to dissolve the writ,
and contemporaneously with the motion, and virtuElly as a part thereof
filed a cross action in the suit where the injunction was pending,
und prayed for the condemnation of the property for the uses of the
dam by virtue of the provisions of Article 3269.
The District in this proceeding offered to give such bond, or
pay such sum of money into the registry of the court, or give such
security, as the court might deem proper, for the payment of damages
that might be assessed against the District on the trial of the caso
on its merits. On the hearing of such moti0nto Qissolve, the tri&l
court determined that the sum of $500,000.00 was a sufficient sum
of money to indemnify the owners of the land in the assessment of
damages for the taking or injuring of the property prior to the hear···.
lng of the case on its merits in the condemnation proceeding.
However, the trial court entertained the conviction that Article 32e·9
was not applicable in such procee<iing, because the owners of the land
were still in physical possession thereof, and that such Article waa
not applicable and could not be invoked except in cases where the
condemnor was alrea6..y in possess ion of the lan6. so sought to be con-­riemned.
For this reason the trial court did not 6.issolve the writ c)":
~-n junction •
The court further found that if it should be determined upon
appeal that the District is entitled to a dissolution of said injunr.;;,
tion, conditioned upon the deposit of money, or that the District is
entitled to maintain its cross actions heretofore filed in this c a.us .=J
for condemnation of the lands and prOperties of the several plaintiff -'
then the court further found 11from the evidence introduced herein rs·.: ..
ating to such values that as a prerequisite to the dissolution of
<~id injunction heretofore issued herein, the Brazos River Conserva ~
on and Reclamation District shall. pay into the registry of this