The additional land so taken cannot be said to be taken for a private purpose, but is necessary for the public purpose of the railway company." See, also, George D. Harter Bank, Trustee, v. Muskingum Watershed Conservancy Dist., 53 Ohio App. 325, 4 N.E.2d 996, appeal dismissed, 130 Ohio St. 337, 199 N.E. 217; Darwin v. Town of Cookeville, 170 Tenn. 508, 97 S.W.2d 838; Town of Cookeville v. Farley, 171 Tenn. 260, 102 S.W.2d 56; Meisel Press Mfg. Co. v. City of Boston, 272 Mass. 372, 172 N.E. 356; Weyel v. Lower Colorado River Authority (Tex.Civ.App.), 121 S.W.2d 1032; State, ex rel. Bruestle, City Solicitor, v. Rich, Mayor, 159 Ohio St. 13, 110 N.E.2d 778. If the city of Cleveland does not have authority to appropriate the land upon which the Nickel Plate tracks are to be relocated, the railroad has the power to do so.
Generally, a ruling on this type motion is left to the sound discretion of the trial court, Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App. Corpus Christi 1976, no writ); Jones v. English, 235 S.W.2d 238 (Tex.Civ.App. San Antonio 1950, writ dism'd), and absent countervailing considerations, intervention is freely allowed when the claims involve common transactions or occurrences and common questions of law or fact. 1 McDonald's, Texas Civil Practice § 3.47 (1981). ERA urges that even if the intervention of Market Realty was erroneous, the error is harmless because Market Realty recovered nothing, citing Weyel v. Lower Colorado River Authority, 121 S.W.2d 1032 (Tex.Civ.App. Austin 1938, writ ref'd). That case held where an intervenor had recovered nothing any error in allowing the intervention was manifestly harmless.
Several court decisions have construed similar language to permit condemnation of property for purposes not expressly authorized by statute. See Snellen v. Brazoria County, 224 S.W.2d 305 (Tex.Civ.App. Galveston 1949, writ ref'd n. r. e.); Weyel v. Lower Colorado River Authority, 121 S.W.2d 1032 (Tex.Civ.App. Austin 1938, writ ref'd); cf. Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828 (Tex.Sup.1958). We recognize the cases cited by appellant in which water and conservation districts in exercising their eminent domain authority to construct lakes cannot condemn contiguous land for purposes of building park and recreational facilities to be leased to private individuals.
The provisions of the act creating said District, particularly Sections 10 and 10a show the legislative intent to empower the District, under the circumstances mentioned, to condemn land for the purpose of relocating and raising the highway. This conclusion is supported by the decision in Weyel v. Lower Colorado River Authority, Tex.Civ.App., 121 S.W.2d 1032 (Writ Ref.) It was there held that the legislature did not intend to restrict said River Authority's power of condemnation to property, or to uses thereof, which the District itself intended to use permanently in its own operation and that it was authorized to do whatever was reasonably necessary and convenient to accomplish the purposes of its creation.
Section 3 of Acts 1929, 41 Leg.2d C.S., c. 13, provides in part, "The Brazos River Conservation and Reclamation District shall have and be recognized to exercise, in addition to all the general powers vested by virtue of the constitution and statutes in a governmental agency and body politic and corporate", etc. Vol. 21, Vernon's Ann.Civ.St., title 128, c. 8, note, p. 536. Also, see Weyel v. Lower Colorado River Authority, Tex. Civ. App. 121 S.W.2d 1032, 1034, writ refused; State v. Hale, Tex.Sup., 146 S.W.2d 731, 736; Imperial Irr. Co. v. Jayne, 104 Tex. 395, 138 S.W. 575, Ann.Cas. 1914B, 322; 18 Am.Jur. 719, 720, 780. Many of the authorities cited by the Gas Company are not deemed applicable because they deal with certain districts, and corporations which, although they possess the right of eminent domain, are not governmental agencies and have not had conferred upon them powers equal to those conferred by the Constitution and statutes upon the defendant District.
4 S.W.2d 569, writ refused; Safeway Stores v. Rutherford, Tex.Civ.App. 101 S.W.2d 1055; Id., 130 Tex. 465, 111 S.W.2d 688; Rothchild v. Turner, Tex.Civ.App. 138 S.W.2d 611; Dunning v. Yancy, Tex.Civ.App. 103 S.W.2d 221; Weyel v. Lower Colorado River Authority, Tex.Civ.App. 121 S.W.2d 1032; Southwest Investment Co. v. Partin, Tex.Civ.App. 83 S.W.2d 766, 767; American Nat. Ins. Co. v. Massengale, Tex.Civ.App. 121 S.W.2d 1035; Whatley v. Davis, Tex.Civ.App. 116 S.W.2d 466; East Texas Oil Ref. Co. v. Simmons, Tex.Civ.App. 105 S.W.2d 507; Texas Emp. Ins. Ass'n v. Arnold, Tex.Civ.App. 105 S.W.2d 686. The trial court must in some way authenticate the proceedings or arguments complained of. Since the above vice (in perpetuating the alleged error in the record) underlies each of the assignments or propositions briefed, it follows that none of them are entitled to consideration.