City of Rosebud v. Vitek , 1919 Tex. App. LEXIS 433 ( 1919 )

On Motion for Rehearing.

We have examined the authorities cited by appellee, and carefully considered the able argument of his attorney on motion for rehearing, but have not been convinced thereby that we were in error in our original opinion herein.

One of the cases cited by appellee is Oregon Electric Ry. Co. v. Terwilliger, 51 Or. 107, 93 Pac. 334, 930. The Constitution of Oregon has two provisions in reference to taking private property for public use. Article 1, § 18, provides that private property shall not be taken for public use “without such compensation first assessed and tendered.” If there was no other provision on the .subject, of course the property would have to be paid for, or the tender refused. Article 11, § 4, provides that—

“No person’s property shall be taken by any corporation, under authority of law, without compensation being first made or secured in such manner as may be prescribed by law.”

In the case above cited the court held that the Legislature of Oregon had “failed to prescribe the manner whereby the compensation of land taken for public use may be ‘secured.’ ” Such being the case, of course payment must have been actually made.or tendered. The appeal was upon an ordinary appeal bond. Our statute has prescribed ample security in such cases.

Russell v. Bush, 196 Ala. 309, 71 South. 397, was a suit by a land agent for commission. The land had been condemned by the United. States, from which there was no appeal. The money was paid, and both parties to the condemnation proceedings were satisfied. The issue was as to whether the broker, who did not effect a lega.1 sale, but brought about the condemnation proceedings, was entitled to commission on the amount paid for the land.

[7] We call attention to the language of article 6530, subd. 2, R. S., wherein it is provided that the award and a like amount must be deposited in the court, “which shall be held, together with the award itself, * * * to secure all damages that may be awarded or adjudged against the plaintiff.” Clearly this contemplated that the award shall not be paid to the defendant pending the suit.

Motion is overruled.