Opinion
No. 6678.
June 29, 1914. Rehearing Denied October 8, 1914.
Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
Action by George P. Ingraham against the City of Nacogdoches. From a judgment dismissing the petition, plaintiff appeals. Reversed and remanded.
June C. Harris and Geo. F. Ingraham, both of Nacogdoches, for appellant. C. A. Hodges, of Nacogdoches, for appellee.
This suit was brought by appellant against the appellee to set aside an assessment upon real estate owned by appellant in the city of Nacogdoches for street improvements under the provisions of chapter 11, tit. 22, of the Revised Statutes (1911). The petition alleges, in substance, that the assessment was unauthorized and illegal because the city of Nacogdoches had never adopted the provisions of chapter 11, tit. 22, of the Revised Statutes, and therefore the city council of said city had no power or authority to make said assessment. The petition further alleges that under the ordinance of said city making the assessment appellee is claiming and attempting to fix a lien upon plaintiff's property which it intends to foreclose. The concluding allegations and prayer of the petition are as follows:
"Plaintiff alleges that by the publication of the ordinances thereinbefore described and the levying of said assessment with the purpose and the intent by said board of aldermen to create and fix a lien upon plaintiff's property, under the terms and provisions of article 1011 of chapter 11, title 22, Revised Statutes of Texas, a cloud has been cast upon the title of plaintiff's land against which such assessment was made. Plaintiff alleges and would show to the court that the pretended assessment, even if legally made, is an excessive assessment, that his property has not been enhanced in its value by reason of the proposed improvement and will not be enhanced in its value by reason of such proposed improvement after the same has been made, that plaintiff is the owner and is in possession of said land and premises, that said assessment is against the following described property and is intended and claimed to be a lien described as follows, to wit: Lot No. 3, in block No. 23, assessed at $162.90. One-half interest in lot 10, block 13, assessed at $171.25, and his one-half interest is $85.63 1/2. Lot No. 2 in block ___, assessed at $134.03, making in the aggregate a total of $382.64, and asserting a lien against said property. Wherefore plaintiff prays the court, citation having theretofore issued to the defendant named herein, that upon a hearing hereof plaintiff have judgment against said defendant declaring said assessment to be null and void and removing the said cloud from his title, and that he be quieted in his title to said land, for cost of suit, and for general and special relief in law and equity as he may be entitled to."
Upon exceptions to the petition presented by defendant the trial court dismissed plaintiff's suit upon the ground that, the amount in controversy being less than $500, the district court was without jurisdiction to hear and determine the suit.
From the foregoing statement of the allegations of the petition it is clear that one of the purposes of the suit is to clear plaintiff's title to the property described in the petition from the cloud cast thereon by the claim and threatened enforcement by defendant of the lien given by the statute to secure the payment of the assessment, and, if the district court has jurisdiction of a suit to remove such cloud, the fact that the amount of the assessment against which plaintiff seeks relief is less than $500 does not defeat its jurisdiction. The case of Bank v. Knight, 126 S.W. 893, cited by appellee, was a suit to enjoin the collection of a tax of less than $500, and the court in holding that the county court had jurisdiction of the suit construed the petition as not seeking to remove cloud from the title to plaintiff's land; the allegations as to cloud upon the title being only incidentally made, and there being no specific prayer that the cloud cast by the alleged illegal tax levy be removed. The fair inference from this decision is that, if the petition had sought to remove the cloud from the title to the land, the suit should have been brought in the district court. The provisions of the statute under which the assessment was made fixes a lien upon plaintiff's land to secure the payment of the assessment, and the passage and publication of the ordinance making the assessment and the assertion by defendant of a lien upon plaintiff's property by reason of said assessment cast a cloud upon plaintiff's title, and if the district court has jurisdiction of a suit to remove such cloud plaintiff's suit should not have been dismissed.
Section 8 of article 5 of the Constitution of this state confers upon the district court jurisdiction of "suits for trial of title to land and for the enforcement of liens thereon." The term "suits for the trial of title to land" has been construed to include all suits of whatever form in which the title to land is directly involved, and it seems to us that when the purpose of the suit is to determine the question of the validity of a lien upon land, as the judgment rendered in such suit would necessarily affect the title to the land, the title is directly involved in the suit.
In the case of Dauenhauer v. Devine, 51 Tex. 480, 32 Am.Rep. 627, which was a suit by a lot owner to prevent the owner of an adjoining lot from making an opening in a party wall, and in which no amount of damages was alleged, our Supreme Court says:
"In regard to the question of the jurisdiction of the district court, our opinion is that the nature of the suit, the injury complained of, and the relief sought were such as to give the district court jurisdiction, independent of the amount of injury alleged. The title and possession of land were so far involved as to make the case one for the district court."
If a suit to prevent injury to a party wall is a suit involving the title to land, we think it must be held that a suit to prevent an illegal attempt to fix a lien upon land, or to remove the cloud upon the title caused by such attempt, is a suit involving the title to land.
Our conclusion is that the trial court erred in holding that it did not have jurisdiction of the cause of action and in dismissing the suit on that ground. It follows from this conclusion that the judgment should be reversed and the cause remanded, and it has been so ordered.
Reversed and remanded.