Cent. Power Light v. Willacy Cty.

This appeal is from a judgment in a proceeding instituted by and in behalf of Willacy county to condemn a strip of land, or the easement thereover, occupied by the power lines of the Central Power Light Company, a public service corporation. This land was sought by the county for the purpose of widening an adjacent public highway thereover. This is a second appeal in the case. Central Power Light Company v. Willacy County (Tex.Civ.App.) 14 S.W.2d 102. The power and light company has appealed from what it regards as an inadequate award of damages for the property taken from it in the proceedings for public road purposes.

It was disclosed, for the first time, in the evidence upon the last trial, that the highway in question is a state highway and designated as such by the state highway department. Appellant contends now on this appeal, for the first time, that, under the statutes as construed by our courts, the county had no power to maintain the condemnation proceedings involved; that such power is lodged by statute in the state highway department, to the exclusion of the several counties of the state; and that such proceedings are therefore void. The point seems to be well taken. Article 6674n, R.S. 1925; Singeltary v. Heathman (Tex.Civ.App.)300 S.W. 242; Heathman v. Singletary (Tex.Com.App.) 12 S.W.2d 150; Watt v. Studer (Tex.Civ.App.) 22 S.W.2d 709; O'Keefe v. Hudspeth Co. (Tex.Civ.App.) 25 S.W.2d 625. The effect of the holdings in these decisions is that Willacy county was without authority to institute and maintain this action, which should therefore have been dismissed by the court below.

The judgment is reversed, with directions to the court below to dismiss the cause, at the cost of Willacy county.