The State of Texas v. Alton Newel Adams, et ux--Appeal from County Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-92-241-CV

THE STATE OF TEXAS,

Appellant

v.

ALTON NEWEL ADAMS, ET UX.,

Appellees

From the County Court at Law

Ellis County, Texas

Trial Court # C-2684

O P I N I O N

The State of Texas is appealing the portion of a judgment that awards fees for attorneys, appraisers, and photographers, and for other expenses incurred by the Adamses. The State contends in a single point that the judge erred by awarding such fees and expenses. We reform and affirm the judgment.

On June 21, 1991, the State of Texas filed a petition for condemnation of the Adamses' property. This petition pled for a subsurface stratified fee taking, and reserved to the Adamses the right to drill for fresh water only within the stratified fee taking. Part of the petition read as follows:

. . . so that the land described in Exhibit "A" be free from exploring, developing, drilling, or mining of any oil, gas, or other minerals included in Defendant's Other Property (See Exhibit "B") (in such a manner so as to permit the physical penetration of, or intrusion into, the land in Exhibit "A"). . . . There is reserved unto Defendant, Defendant's heirs, successors and assigns, the perpetual easement to drill, excavate, or bore one or more shafts, wells, or boreholes upon any portion of the land solely for the purpose of exploring for, discovering and producing fresh water. . . .

The purpose and intent of this language, according to the State, is to protect the subsurface stratified fee described in Exhibit "A" from physical penetration. An exception is that the Adamses can penetrate the subsurface for the purpose of "exploring for, discovering, and producing fresh water."

On August 16, 1991, at a Special Commissioners' Hearing, the Adamses complained that the State was taking a "blanket easement" over their entire remaining property. They argued that such an easement would place a cloud on their title and prevent them from developing the remainder of their property to its highest and best use as a rural subdivision. After the hearing the State filed an amended petition to protect the Adamses' interest by eliminating any appearance of a blanket easement that might cloud the Adamses' title to the rest of their property.

On March 11, 1991, a jury returned a verdict in favor of the State. However, the Adamses filed a motion for expenses under section 21.019(b) of the Texas Property Code. See Tex. Prop. Code Ann. 21.019(b) (Vernon Supp. 1993). After the hearing the court awarded them their expenses.

The State contends that the court erred in ordering the State to pay the Adamses $15,071.00, plus pre-judgment and post-judgment interest on this sum, for fees for attorneys, appraisers, and photographers, and for other expenses incurred by the Adamses. Section 21.019(b) states:

(b) A court that hears and grants a motion to dismiss a condemnation proceeding made by a condemnor under Subsection (a) shall make an allowance to the property owner for reasonable and necessary fees for attorneys, appraisers, and photographers and for the other expenses incurred by the property owner to the date of the hearing.

Id.

The implementation of section 21.019(b) of the Property Code requires that a plaintiff shall file a motion advising the court of its intention to dismiss or abandon the proceeding to trigger the mandatory reimbursement of expenses provisions. See Zucht III v. City of San Antonio, 698 S.W.2d 168 (Tex. App. San Antonio 1984, no writ). In the present case no motion to dismiss any portion of the condemnation proceeding was ever filed by the State. Thus, section 21.019(b) does not apply. See id. We sustain the State's point.

We reform the judgment by deleting the portion awarding the Adamses $15,071 as fees for attorneys, appraisers, photographers, and other expenses, and the judgment is otherwise affirmed as reformed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reformed and affirmed

Opinion delivered and filed February 3, 1993

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