On Appellee’s Motion for Rehearing.
In its motion for rehearing appellee points out that since our opinion was handed down the Court of Civil Appeals for the Fifth Supreme Judicial District in the case of Loumparoff v. Housing Authority of City of Dallas, 261 S.W.2d 224, has held directly contra on the point on which we based our decision, i. e., that the description of the property set forth in the petition for condemnation was insufficient to confer jurisdiction on the trial court. We have examined the case cited and agree with appellee that there is an irreconcilable conflict. While we exceedingly regret to conflict with our brothers of the Fifth Supreme Judicial District, we are unable to agree with the reasons assigned in the Loumparoff case. First it is said that the language “and all adjoining and contiguous property owned or claimed by said defendants” may be ignored and treated as surplusage. We think not. Condemnation is a rather drastic proceeding and every legitimate presumption should be indulged in favor of the con-demnee. When the condemnor seeks to take “all adjoining and contiguous propr erty owned or claimed by the condemnee”, it is reasonable to assume that there was such adjoining and contiguous property. No matter how small the tract of such property may be, the owner cannot be deprived of it without just compensation under the Constitution of this State. Therefore, we think that to disregard the language in effect violates the Constitution. The second reason assigned is that appellant waived the insufficiency of the description by not excepting to it. We have never understood that a party or parties to a suit could waive matters which are jurisdictional, such as an insufficient description in a condemnation proceeding. The way we feel about the matter is that the conflict should be and will have to be settled by superior authority.
The motion for rehearing is overruled.