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HomeMy WebLinkAboutC2005-739 - 8/30/2005 - Approved \f0. 03-h0362-1 O'IDEMNATION PROCEEDlNG ( rl Y OF CORPUS CHR 1ST] IN THE COUNTY COURT \ DA'4 ORVILLE Dl:NNI~.. BARBARA CRYER DENNIS, \1AUDE EVEL Yi\ CR YER, ANN DENNIS DYKES and BOYD LISKA, Individually and db/a BO'yTI LISKA FAR MS AT LAW NO.1 ~ , ~ , , , ~ , , , NUECESCOUNTY,TEXAS AGREED FINAL JUDGMENT BE IT REMEMBERED that on this date came the parties to the above styled cause, in which the CITY OF CORPUS CHRISTI is Plai ntiff and DAN ORVILLE DENNIS, BARBARA CRYER DENNIS, MAL DE EVELYN CRYER, ANN DENNIS DYKES, and BOYD LISKA, individually and doing business as BOYD LISKA FARMS are Defendants, and announced to the Court that they had compromIsed and settled their differences and pursuant to such settlement, the partles waive further proceedings in thIs cause other than the entry ofthis Agreed Judgment; and IT APPEARING TO THE JUDGE, AND IT IS SO FOUND, that (1) the Award of ~pecial CommISSIOners has been hied With the Clerk ofthis Court; (2) Defendants have filed there oh,lectJOl1s to such'\ ward (3) the Defendant, Boyd LIska, individually and doing business as Boyd Liska Farms has compronnsed and settled all clalms that he has against the Plaintiff arising out of these proceedings and the taking of the easement sought herein and assigned to Plaintiff any interest ht~ has In the funds deposited by Plaintiff in the registry of the Court and agreed to the entry of this judgment that he take nothmg, as evidenced by his Agreement of Partial Settlement and Assignment flled 1T1 this cause. (4) subsequent w the Award of Special Commissioners, Defendant, Maude F velyn ( ryer has (lied and her estate !s represented herein by Ann Dennis Dykes, Independent 2005-73li 08!301O~ l\12005-3()/ i DennIS, Dan On i11I". l't al \ccutn\, (5) The PlainHtand the remaming Defendants in addition to ML Liska, have agreed to 'I.t ell1", ofthlsJudgmen as e\'ld~nced by the signature of their respective attorneys hereto and (), thl" I.'oun approves t 11e settlement elf the parties and has jurisdiction to enter this judgment IT IS THE REFORE, ORDERED, ADJUDGED AND DECREED by the Judge of this (lurL as follows, hat The Plamtlff, CITv OF CORPUS CHRISTI, be and it is hereby, vested with title to the permanent ane temporary easements described in the Plaintiffs First Amended Original Petition For Condemnation on tile herein. and as evidenced by a true copy thereof attached to th1s judgment and adoptee as part of this Judgment for all purposes. The Defendant, BOYD LISKA, INDIVIDUALLY AND D/B/A BOYD LISKA FARMS, take nothing by 1his Judgment, ~ The Defendants, DAN ORVILLE DENNIS, BARBARA CRYER DENNIS, ANN DENNIS DYKES Individually and as INDEPENDENT EXECUTRIX OF THE ESTATE elF MALDE EVf L YN CRYER, deceased, Jointly recover of the Plaintiff, City of Corpus Christl. the sum 0' Twenty Thollsand and noll 00 Dollars ($20,000.00); and it appearing that the Plamtlffhas heretofore deposited the amount of the Award of Special Commissioners in the registry of the '~ourt subject to the order of the Defendants, the Clerk is ordered to pay to ~nn Denl1l<;; Dykes, Dan .)rville Denms. Barbara Cryer Dennis and Ann Dennis Dykes, Independent Executrix oflhe Estate of Maude Evelyn Cryer, deceased, the sum of Twenty Thousand Dollars i $20,00noo) from the registry of the court in satisfaction ofthis judgment; .+ r he Clerk 1S ordered 10 pay the Plaintiff, City of Corpus Christi, the balance of its deposit remaining III the registry of the Court after the foregoing payment to the Defendants, less any applicabk costs. ]XOI27 ',' fhe ,:osts If these proceedings mcluding the fees of Special Commissioners, !lcretofore paid b\ Plallltitl are adjudged against the Plaintiff. fhls Judgment IS entered fully satisfied and no execution shall issue thereon except 'or costs of .'ourt 1 the same be not timely paid. A SIGNED this t'le ~ day of Judge Preslding/ . L',/ / AGREED AND APPROVED AS TO FORM AND SUBSTANCE: 'vVeider leshin, I.L I) Bv 13\ k' t:? (~ ~-~ (-,)h~-,- J----pz-' ~tn_' State Bar No. 045 4000 800 North Shorelllle Blvd. Suite 3elO North 1 lWeI' Corpus Chnsti, Texas 7841)\ r elephone (361) -':;61-80011 Telecopier (361) ~61-800 FILED u ~ 9 2006 L\ fTORNFYS FOR PLAl'\JTIFF. fTY OF CORPf S CHRISTl _ ~...~W Ann Dennis Dykes State Bar No. 06325201! 5 J 35 Holly ferral e Houston, Tc:xas 1'056 Telephone ,713 (iJ21-998 I T elecopier \ 713) 1)21-998? fV\ J01,C 3v()~U'"U.I.\I,"'H II f." lUJ___--... /) . / . . . ')D/.fJ: ~, l*IMCIL =:.....~..:..1lt - "Fr.,-T l.RV -f11-- !~ fTORNEY FOR DEFENDA\,TS, DAN ORVILLE DENNIS BARBARA CRYER DENNIS THE EST A TE OF MAUDE EVELYN CRYER, deceased, and ANN DENN IS DYKf::S }\0127 \JO 03-60362-1 CONDEMNATION PROCEEDING ( TY (IF CORPl is CHR STI IN THE COUNTY COURT \ ^' , ~ DAJ"J OR VILLE DENNI~, BARBARA CRYER DENNIS, \1AUDE EVELYN CRYER, ANN DENNIS DYKES and BOYD LISKA, Individually and d/b/a BOYD LISKA FARMS AT LAW NO.1 q ,~ ,~ 1 ~ ~ NUECESCOUNTY,TEXAS PLAINTIFF'S FIRST AMENDED ORIGINAL PETITION FOR CONDEMNATION TO THE HONORABLE JUDGE OF SAID COURT: fhe CITY OF CORPUS CHRISTI, "Plaintiff," exercIsmg the power of eminent domain conferred upon it by Texas Local Government Code Chapter 251, and by virtue of Texas Propert\ Code. Chapter 21 and its CIty Charter and Ordinances, files this First Amended Original Petition for Condemnation against DAN ORVILLE DENNIS, BARBARA CRYER DENNIS. MAUDE EVELYN CRYER, ANN DENNIS DYKES, and BOYD LISKA, mdIvidually and doing business as BOYD LISKA FARMS, "Defendants," and would respectfully show I i\ Plamtiff, "City" IS a home-rule municipal corporation operating under a home mle-charter in the (it:, at Corpus ChnstL Nueces County, Texas. and having by law the right of emment domain and power of condemnation, acting herein by and through its duly elected and authorized City Council for and on behalf of the City of Corpus Christi. B Defendant. Dan Orville Dennis is a resident of Nueces County, Texas to whom notice may be delIvered al 15402 Fortuna Bay, #2804, Corpus Christi, Texas 78418. 198669 \ Defendant Barbara CT\l~r Denms is a resident of Nueces County, Texas to whom ni!tice m,!\ be deJI., ered It her nsidelll'C, or b\ delivery to her authorized agent, Dan Orville Dennis at 15402 Fortuna Bay, #28!l4. Corpus Christl. Texas 78418. Defendant. Maude Evelvn Cryer. formerly a resident of Nueces County, Texas, nn\\ deceased. is a party '1ereto b, substitution of Ann Dennis Dykes, Independent Executrix of the Estate of Maude Evehn Cryer deceased. Defendant Ann Dennis Dykes is a resident of Harris County, Texas to whom notIce may be delivered al 5135 Holly Terrace, Houston, Texas 77056. Defendant Boyd Liska, mdividually and doing business as Boyd Liska Farms, is a resident of Nueces County, Texas to whom notice may be delivered at 4302 Clear Fork Court, Corpus Christl. Texas 78410 II. The Count\ COUrT at Law has Jurisdiction of this proceeding pursuant to Texas Property Code S eetion 2 l.I)o 1 III. Plaintiff, through its governing body has determined it to be necessary in the public interest to acquire a fifty foot (50') wide exclusive permanent easement on 3.4 acres of land, more or less, and a one hundred foot (100') wide temporary easement on 6.8 acres of land, more or less. along and adjacent to the north-eastern boundary of the said pennanent easement for the municIpal purpose of. from time to time, constructing, laying, operating, inspecting, servicing, repairing. maintammg, replacmg, keeping and removing public utility lines (including above and below ground appurtenances incident thereto) all as hereinafter more particularly set out in the attached Exhibit "A," The real property of Defendants' on which Plaintiff seeks such easements 198669 V} IS situated m Nueces County. Texas and is more particularly described in the attached "Exhibit 'R Tbe attached xhibl s "i\' and "r3' are adopted by this reference as a part hereof for all purposes 1\. lhe PlamtIfT has determined that the Defendants are the persons owning or claiming some interest m the property being condemned (subject property). The fee title to the subject property IS jointly owned by each of the Defendants, except that the Defendant, Boyd Liska, mdividually and doing busmess as Boyd Liska Farms. has only a leasehold interest therein. V. Plamtiff was unable to agree with Defendants on the damages to which they were entitled for such acquisition and further negotiation were futile. All conditions precedent to filing this condemnatIOn action have been satisfied: Special Commissioners have been duly appointed and made theIr Award. (JbjectlOn to the Award has been filed by Defendants ant this proceeding is a cause pendmg on the ClvIl Docket ,)f the (:ourt WHEREFORE PREMISES CONSIDERED, Plaintiff prays that a judgment be entered vesting In the Plaintiff, City of Corpus Christi, title to the easements sought on the subject property and awardmg compensation Jomtly to the Defendants as allowed by law, assessing the amount of costs, and grantmg such other relief to which the parties may show themselves to be entitled ! 98669 V3 Respectfully submitted, WELDER, LESHIN, LLP, By Ka~. J;s~. Cohn, Jr. St~~ Bar No 04514000 800 North Shoreline Blvd. Suite 300 North Tower Corpus Christi, Texas 78401 Telephone: (361) 561-8000 Telecopier: (361) 561-8001 A TTORNEYS FOR PLAINTIFF CITY OF CORPUS CHRISTI CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing pleading was mailed to the attorneys of record listed helow. in accordance with the Texas Rules of Civil Procedure, on this the A}' day of July. 2006 Via Certified Mail RRR # 71603901 984289633856 Ms. Ann Dennis Dykes 5135 Holly Terrace Houston. Texas 77056 Via Certified Mail RRR #: 71603901 984289633863 Mr. Boyd Liska 4302 Clear Fork Court Corpus Christi. Texas 78410. 198669 v:' "EXHIBIT A" (Page] of 2) "he rights 0' PlaintIff III the pennanent easement sought herein, which shall be an exdusi\ e easement, are for the purpose of the free and uninterrupted use of going in, on, over. under and along the fifty loot (50' stnp of land described in Exhibit "B," together with free ingress. egress and regres~ within ~aid easement by Plaintiff, its duly authorized agents, servants and franchisees. to he useo, from tlme to time, solely for the municipal purpose of constructing, lavmg, operating, Illspecting, se[\:j,.:mg. repairing. mamtaining, replacing, keeping and removing public utihty lines (mcludmg abov,~ and below ground appurtenances thereto). It is specifically a lJmitatlOn on this easement that HS use shall be restricted to the foregoing municipal purpose for use hy the City of Corpus Christi and its franchisees in delivering public services and not by other persons or entities for private purposes. The foregoing limitations on the purpose and use of this easement are covenants running with the title thereto; and such limitations shall be bmding on any subsequem grantee or assignee of the easement or any part thereof; and are enforceable by the owners of the servient estate as third party beneficiaries of such covenant, in addition hI any other remedy they might have at law or in equity The rights of Plaintiff m the temporary easement, (sometimes referred to as temporary work space) sought herem are for the purpose of the free and uninterrupted use of the one hundred foot (lOCl stnp of land adjacent to the north-eastern boundary of the permanent easement described in Exhibit "8" for the purpose of providing working room and storage of materials and machinery during constructing or laying of the initial public utility line under the terms of this grant. This rcmporarv easement shall terminate upon completion and acceptance by the Plaintiff of the mitial utility line constructed or laid within the permanent easement. In no e\ent shall PlaintIff hay am nght to use the temporary easement for any purpose after September 28, 200" rhe rights of Plaintiff to be acqUIred are easement rights only, and there is reserved unto the Defendants, theIr heIrs, executors, successors and assigns, the use and enjoyment of the easements subject \mly to the dominant right of the Plaintiff to the full use and enjoyment thereof. without interference for the purpose for which the same are sought. Plaintiff shall, from time to time. after any construction, laying servicing, repairing, inspecting, maintaining, replacing or removmg public utiilty lines, restore the surface of the land within the easement areas as nearly as practicable to the same condition as existed prior to such use. Plaintiffs obligatIon to restore and repaIr the surface of the easement property shall be a continuing oblIgatIOn during the telm of Hus easement. Plamtiff shall have no right to use any of Defendants' properlv outSIde the easements herein described. f)laintiff shall havt no nght to fence the pemlanent easement. Defendants shall have the nght ;0 cross the pennanent l~asement with roads, pipes, and fences, and any kind of transmISSion or communication lines so long as the same are installed so not interfere with safe operation of utility lines \.'onstrucred or laid under the terms of this easement. Defendants can erect no other pem1anent structures within the permanent easement than those stated and any fences across the same shall provide gates for Plaintiff s easement use. 1\(Ii/8 \. .. EXHIBIT A" (Page 2 of 2) Plaintiff shall compensate Dan Orville Denms, Barbara Cryer Dennis, and Ann Dennis Dvkes, mdividuaIJ; and as Independent Executrix of the Estate of Maude Evelyn Cryer, deceased I'"Landcm ners" for 105-> of or damage to crops on the subject property caused by Piamtiff'5 operatIOns or hy entr: of Plaintiff or Its franchisees or their employees, agents, In \1!ees (lr contractors i' Plainti ff s Group) on the easement in connection with installation, operation. inspectll.m. maintenance. repair, replacement or removal of utility lines and appurtenances ()f any other work including surface restoration activities, that damages then- ex Isting crops or prevents commencement of planting operations at the customary time for such operations on the subject propert;. landowners shall be deemed to have been prevented from cIHnmencmg plantmg operations tor a crop year if any of Plaintiff's Group have not completed pnor wnrk operations and surface restoration, as described herein, by January 1 of a crop year. Fadlue !): any of Plaintiff 5 Group to complete such work by January I shall obligate Plaintiff to compensate Landowners 'or a tolal crop loss for that crop year on the area affected by such "Y9Lli, regardless of IVheth\~r Landowners subsequently plant on the affected property. \ny excavatlon on the easement area shall be done by the double ditch method, by which the origmal topsoJl shan be set aside and replaced on top of the backfill for any ditch or e\Cdvatlon. I - l{JI i8 \ d URBANI ~~G I N E.=_~~~_~ j Job No 317(,O.Y904 Scplcmber 26. 2002 Jt 1t"".-1 i)PU~ CI nW;fl I[;\.^ l[Jil(J() ( \:,~) fA'^ O(,lwrJ4-6001 EXHIBIT "8" [({ACT 4 STATE OF TEXAS COUNTY OF NUECES Field.l10les for a 50.00 fool ",ide llliul)' C<l:,CIIICIIl olll of a 149.07 (Jcre Lracl oul of a 162.425 acre lract oul ofa 318.5 acre lract originaUy conveyed 10 D. C. Cryer and 0 L. CI)'Cr per deed daled Seplember 21. 1923, recorded in Volwne 142, P-dge 539, Deed Records of Nueces Coullly, Texas; said \185 acre lrdcl consisting of portions of Survey No. 166, A-lOO9. patenlcd to John H. Gallagher by Patent No 602. 'volwne )0 and SUrvC)' No. J 18. A-986, palented 10 Jolm H. Gallagher by Patcnt No. 540, Volume 30 and Sun'ey No. 316, A-I 005, palenled to J.R. Ward by Patent No. 138. Volume J 1. Nueces County. Texas; said 162.425 acre tracl being lhe same property described in deed dated March L 1971 and recorded in Volwne 1390, Pages 465 tl1ru 467. Deed Records of Nucccs Cowlty. Te.\us; said ulility easement being further described as follows: Beg.l1uting at a point 011 the exisllllg cast boundary of Clarkwood Road (F.M. Road 2442), a 100 foot wide public roadway. for the northwest comer of lhis easement, from which comer tlle intersection of said east boundary of Clarkwood Road with the south boundary of McGloin Road. a 60 foot wide public roadway bears North 0 1000'29" West, with said east boundary of Clarkwood Road.; 834.57 feel and from wluclt Poinl of Beginning a National Geodetic Survey monument stamped "SQ-I&O" bears North 28044 '25" West 1. '25 38 fee 111ence, South 61050'25" East, wuh the north boundary of this easement, passing through said 149.07 acrc traCI, 3021.86 feet to the common boundary of said 1~9.07 acre trnCl and of a 128.108 acre tract (Document No. 1999023834, Official Records of Nueocs County , Texas) for the northeast comer of this tract; said 128.108 acre tract being a portion of a 138acrc tract out ofllie 101m H. Gallagher Sunrey No. 166, A-lOO9 alldout of the John H. Gallagher Survey No. 318, A.986, Nueces County, Texas and being the same property described in deed dated May 12, 1942 and recorded in Volume 278, Pages 637 Ulru 639, Deed Records of Nucces County. Texas: Thence, South 89028' 3 5'"' Wesl, with the Clbo\'e mentioned cOlmnon boundar)' linc. same being the cast boundmy of this easemenl, 104.17 feet for Ule southeast comer of this casement; lllence, North 61050'25" West, witllthe south boundary of this easement, passing through said 149.07 acre lract, 2902.56 feet to the aforementioned east boundary of Clarkwood Road for the southwest comer of lhis easement: Thence, North 01000'29" Wesl, with said east bolUldar)' of Clarkwood Road, same being tlle west boundary of this easement. 57.26 feet to the Point of Begiruung and containing 148,105.293 square feel (3.400 acres) of land Bearings based 011 GPS bc<1r1.llgs, NADS3, Texas South Zone. Nalional Geodetic Survey monumcnts "SR-II0" (North coordinate = 17.140,754.1680 East coordinale = 1,331,010.0090) and "SQ. I 80" (North coordinale = 17,168.372.5600 East coordinate = 1,293,612.9130) wcre used as control points for establishing basis of be.1ring. Coordinates sho\,;n are based on Texas State Plane Coordinate SystClll. South Zone tNAD81) URBAN ENGlNEERJNG ~~.)~ JUAN J SALAZAR. R.P.L.S License No 4909 r[x^~ 78.:10<1 Exhibit "B" Page 1 of 2 111\"'I"r' )(In(:lllj.1 orl, 1Il~.-I""''''Cll E ;~ _ ~ 2 ~ ,., ~"':p.. ~ ~~. -o~c.....:r t:'1 ~Z~~~()fvi "'0. -8....a> ,.., UOQ 5> on~88~~~ 8in :g~~o ::0 o~~;;:~o ::2 ~'" . 'fYl2 ~ ~""~18() M-f,zno_::~ <1,:;:-0811I"''')_ ~ 0::00 - - VlUlZ2Ib"'~ ....%....z-. C$ ,.,O\ll>Ql....~- I:~ ....OUl Z . z...,""" .... 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