DocketNumber: No. 15048
Judges: Barrow, Cadena
Filed Date: 3/29/1972
Status: Precedential
Modified Date: 11/14/2024
Appellant, Robert L. Menconi, Robert A. Kline, and I. Kenneth Kline, have perfected an appeal from a take-nothing summary judgment in their suit in the nature of an inverse condemnation to recover for damages allegedly done to abutting land in 1948-1949, when U.S. Highway No. 81 was reconstructed and rebuilt by the State Highway Department. It was alleged that the highway was elevated and widened, thereby materially and substantially impairing reasonable access to their tract and causing surface waters to be diverted across said tract which constituted a taking or damaging of said property for public use without compensation within the meaning of Article 1, Section 17, of the Texas Constitution, Vernon’s Ann. St.
The land in controversy was acquired by the Kline brothers about 1940. In 1968 the tract was leased to appellant Menconi and as a part of the consideration therefor, he was assigned any cause of action then owned by the Klines. On June 4, 1969, the Legislature granted appellants permission to file suit against State; and on April 17, 1970, this suit was filed. State moved for a summary judgment based on the pleadings, deposition of the Kline brothers and certain stipulations. State asserted it was not liable for three reasons: (1) no valid claim lies against the State in that only the City of San Antonio had the statutory power to condemn this land which was located within the city limits; (2) the cause of action is barred by the two-year statute of limitations; and (3) the cause of action is barred by laches as a matter of law.
The basis of the trial court’s judgment is not shown and, therefore, appellants have asserted by four points of error that State is not entitled to judgment on any of the grounds. We conclude that the record before us establishes that the cause of action is barred by laches or stale demand as a matter of law and, accordingly, do not consider the merits of the claim.
The Kline brothers, hereinafter referred to as Kline, owned 22 acres of land with 1100 feet of frontage on the south side of U.S. #81. Although within the city limits of San Antonio, this was largely rural acreage on both sides of the highway in 1948.
Kline had only a night club and a small government surplus building on their property. Across the highway from their property was a farm and the surface waters drained into an earthen tank just north of the highway adjoining the Kline tract. In June, 1948, City of San Antonio and State entered into a construction agreement, whereby State agreed to widen and reconstruct this highway within the City limits; and City agreed to indemnify State for all damages to abutting property arising out of the performance of this work. The highway was elevated and widened from 30 feet to 60 feet. The culvert then under said highway was also widened. The highway and culvert as widened took up most of the right-of-way. Robert Kline testified that
It is seen that there was a delay of over twenty years in asserting this claim against the State. Appellants’ only explanation for this delay is that they did not know any legislator and, thereby, were prevented from securing legislative consent to sue the State. It has been suggested by one writer that since inverse condemnation is based on a constitutional provision that is on a level equal to the constitutional provision prohibiting suits against the State without its consent, Article 1, Section 17, may be self-executing. See Cabaniss, Inverse Condemnation in Texas, 44 Texas Law Review 1584, 1586 (1966). In State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), the Supreme Court said, at least by dictum, that in order to maintain such a suit, it was essential that the State should give such consent. Accordingly, we assume, without deciding, that consent was necessary for bringing this action.
Appellants assert that limitations would not begin to run until such consent was obtained,
The first element of unreasonable delay is clearly shown as a matter of law in this delay of over twenty years with full knowledge by appellants of their rights. A more difficult question is raised as to the second element of prejudicial harm. It is recognized that a long lapse of time has a tendency to obscure evidence and often makes it impossible to discover the truth. Here the clear and unequivocal testimony of Robert Kline establishes that there has been a dramatic change in the area in controversy in the past twenty years. It has gone from a rural area to an urban area. Where once farmland slowly drained into an earthen tank across the highway from appellants’ property, there is now a large community center and parking lot which increases and accelerates the run-off of surface waters.
Laches as a matter of law was recognized in Huffington v. Doughtie, 113 S.W.2d 343, 347 (Tex.Civ.App. — Galveston 1938, no writ), wherein it was said: “ ‘An equitable demand will become stale in 10 years after suit might have been brought without some excuse for the delay; the same being the longest period of limitation.’ ” We conclude from the record that prejudicial harm is shown here as a matter of law.
The trial court did not err in sustaining State’s motion for summary judgment. The judgment is affirmed.
. Bargainer v. Guest, 246 S.W.2d 901 (Tex.Civ.App. — Waco 1952, writ ref’cl); 37 Tex.Jur.2d, Limitation of Actions, Section 27, p. 122.
. In Brazo River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1962), the Supreme Court held that in ease of a “taking" within Article 1, Section 17, of the Texas Constitution, the City’s right thereto would not be barred until the expiration of the 10-year period necessary to acquire lands by adverse possession under Article 5510, Vernon’s Annotated Civil Statutes.