In Denton Cnty. v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962), special condemnation proceedings were initiated by Denton County, Texas to condemn land owned by Brammer.
Brammer filed timely objections to the special commissioners' award, but allowed seven years to pass before having citation issued and served, and allowed five years to pass after withdrawal of the award from the registry of the court before obtaining a trial setting.
At trial, Brammer stipulated that Denton County had the right to condemn the land, and the case proceeded to trial solely on the issue of the value of the land to be taken and the damages to the remainder of Brammer's land by reason of the taking.
The trial court rendered judgment for Brammer in an amount exceeding the special commissioners' award.
On appeal, the supreme court held that the trial court abused its discretion in failing to conclude that the record raised a conclusive presumption that Brammer had abandoned his objections to the special commissioners' award.
The supreme court indicated that certain legal principles controlled its decision:
"We recognize that the filing of objections to an award of Commissioners by a condemnee does not constitute the institution of a suit by the condemnee. . . . We recognize that the filing of the original objections and exceptions by Brammer simply converted the special condemnation proceedings into a suit and invested the county court with jurisdiction of the subject matter of the case. The filing of the original objections in this case vacated the award of the special Commissioners. The condemnor, Denton County, became the plaintiff and Brammer, the condemnee, became the defendant. Although the condemnee, Brammer, became the defendant, we construe the statute, Article 3266, supra, to mean that the condemnee, Brammer, had the burden of causing the issuance of citation and the obtaining of service of such citation upon the condemnor, Denton County. While the condemnor, Denton County, as plaintiff, had the burden of proving all the essentials necessary to show a right to condemnation, and had the burden of going forward to trial, it was under no legal obligation to do so unless and until it had been served with citation." Brammer, 361 S.W.2d at 200 .
In determining that the condemnor was the plaintiff before the trial court, the supreme court in Brammer did not distinguish between a challenge to an award based on lack of authority of the condemnor to take the property and a challenge to an award based on value of the condemned land.