Unless notice has been properly served in accordance with the statute, the commissioners have no jurisdiction to assess damages or do anything that would declare a condemnation of the property.City of Houston v. Kunze, 262 S.W.2d 947, 951 (Tex. 1953); Parker v. Fort Worth Denver City Ry. Co., 19 S.W. 518, 519 (Tex. 1892). Tex. Prop. Code § 21.012(a).
Notice to the owner of land sought to be condemned is jurisdictional, and a judgment had without such notice served as the law requires is void. Parker v. Railway Co., 84 Tex. 333, 19 S.W. 518; McIntire v. Lucker, 77 Tex. 259, 13 S.W. 1027; Adams v. San Angelo Waterworks Co. (Tex.Civ.App.) 25 S.W. 165; Cummings v. Kendall County, 7 Tex. Civ. App. 164, 26 S.W. 439; City of Dallas v. Crawford (Tex.Civ.App.) 222 S.W. 305; Crawford v. Frio County (Tex.Civ.App.) 153 S.W. 388; Cooke County v. Dudenhaffer (Tex.Civ.App.) 196 S.W. 976. The sheriff of Newton county served J. K. Wilson with notice of the proceedings, and testified, substantially, that at the time he served J. K. Wilson that Wilson told him that Mrs. Wilson was very ill and that her mental condition was bad, and that she was not in a condition to be disturbed, and that he then told Wilson that he would not serve her with the notice, but that he would mail it to Wilson at their home, and that he could give the notice to Mrs. Wilson, and that he later did mail the notice to Wilson and received a letter from Wilson that he had received it and that it would be all right. Wilson admitted getting the notice that the sheriff
In the first place, the bars to setting aside the decisions of tribunals such as the Commission (in this case the charges made against petitioner's account) are lower than those with respect to the judgments of courts of record. City of Houston v. Kunze, Tex.Sup., 262 S.W.2d 947; Parker v. Fort Worth Denver City Railway Co., 84 Tex. 333, 19 S.W. 518. Both cited cases denied significance to the recital of due service in a condemnation judgment on the theory that condemnation is a proceeding of a '* * * special tribunal, and it is incumbent on one seeking to show right under its decree to show that the court had required (sic) jurisdiction to render it. * * * This is the general rule as to proceedings of special tribunals.
— Appellant not having been made a party to the condemnation proceedings, nor being impleaded therein, is not estopped by the proceedings and judgment of condemnation against Ulysses Grandjean. Aggs v. Shackelford County, 85 Tex. 145; Odell v. Railway, 4 Texas Civ. App. 607[ 4 Tex. Civ. App. 607]; Parker v. Railway, 84 Tex. 333 [ 84 Tex. 333]; Lewis, Eminent Domain, 322. The trial court erred in holding plaintiff was estopped from asserting her right to the personal and real property sued for, because the whole proof established without contradiction that the condemnation proceedings against Ulysses Grandjean alone had been conducted to a final judgment, and the amount awarded by said judgment to said Ulysses Grandjean had been deposited with the city treasurer of defendant for payment of said judgment under condemnation proceedings; and it is wholly immaterial whether plaintiff received the whole or any part of the award made to and paid under said judgment in favor of her then husband by defendant.
CODE ANN. § 21.012(a) (b)(1) (condemning authority's petition must describe the property to be condemned); § 21.016(a)-(c) (entitling each party in an eminent domain proceeding to notice of the hearing of the special commissioners and requiring return of notice to the special commissioners); Smith, 616 S.W.2d at 302, 304, citing City of Houstonv. Kunze, 153 Tex. 42, 47, 262 S.W.2d 947, 951 (1954) and Parker v. Ft. Worth D.C. Ry., 84 Tex. 333, 337, 19 S.W. 518, 519 (1892); Matador Pipelines, Inc. v. Martin, 684 S.W.2d 165, 167 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.) (commissioners may hear parties and assess damages only on a showing of return of notice of hearing to assess damages). On September 23, 1988, at a hearing rescheduled from September 12, 1988, pursuant to Section 21.105(b) of the Property Code, the Harris County Special Commissioners [hereinafter "the special commissioners"] set the condemnation award due the appellants at $185,395.
"It is necessary that condemnation proceedings shall describe the premises condemned with as much certainty as is required in deeds and other conveyances. Mills, Em. Dom. § 115; Parker v. Railway Co., 84 Tex. 333, 19 S.W. 518."
Until the statutes requiring notice are complied with, the commissioners have no authority to assess damages or to make a report, and the court has no jurisdiction to declare the condemnation. Parker v. Railway Co., 84 Tex. 333, 19 S.W. 518; Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S.W. 1044. It is necessary, in order to give jurisdiction, that notice to the owner first be had. McIntire v. Lucker, 77 Tex. 259, 13 S.W. 1027; Adams v. San Angelo Waterworks, etc., 25 S.W. 165; Haverbekken v. Hale (Sup.) 204 S.W. 1162.
The description in said deed of said right of way is so vague, indefinite and uncertain as to render the identification of the true situation and boundaries of said easement impossible, and is therefore void. Jones v. Andrews, 62 Tex. 652 [ 62 Tex. 652]; Parker v. Railway, 84 Tex. 333 [ 84 Tex. 333]; Railway v. Durrett, 57 Tex. 48; Railway v. Mud Creek, etc., Co., 1 App. C.C., sec. 393; Railway v. Hoggset, 1 App. C.C., sec. 444; Sayles' Texas Civ. Stat., art. 548, note (5). Baker, Botts, Baker Lovett, and Votaw Chester, for appellees.
But even if the authority sought to be conferred on district clerks to probate wills in vacation is legal and valid, then it is a special and limited jurisdiction, and must be exercised in the exact manner prescribed by the statute, and the record must affirmatively show that all the requirements of the law have been fulfilled, and no presumption will be indulged in favor of such proceedings. Const. 1869, art. 5, secs. 1, 7, 9; Messner v. Giddings, 65 Tex. 305; Ex Parte Whitlow, 59 Tex. 273; Parker v. Railway, 84 Tex. 333 [ 84 Tex. 333]; Mitchell v. Runkle, 25 Texas Supp., 432; Freem. on Judg., sec. 123; Lessors of Grignon v. Astor, 2 How., 320; Harvey v. Tyler, 2 Wall., 342; Acts of 1870, chap. 81, secs. 1-22; Id., chap. 81, sec. 75, subdivs.
The condemnation of private property for public use is a proceeding vested by the law in certain tribunals, and certain forms and prerequisites to its legal exercise are prescribed, and in no other way than that prescribed can property be diverted from a private to a public use. Parker v. Railway, 84 Tex. 333 [ 84 Tex. 333]. Article 4365 of the Revised Statutes provides, that no application for a new road shall be granted unless the persons applying for the same shall have given notice for at least twenty days of the intended application, and this notice must be given in a prescribed way.