(concurring).
My concurrence is limited to appellants’ point 2; being of the opinion, on the other hand, that points 1, 3 and 4 should have been overruled. In appellee’s original petition seeking to condemn the 50-foot strip across the land in question, the statement was made that the “right of defendants and subsequent owners of said land to cultivate said strip, raise crops thereon, or use it for pasturing live stock or for any other purpose, not inconsistent with plaintiff’s enjoyment of the easement and right of way above described, shall not be obstructed or interfered with, except to the extent above stated.”
The supplemental petition simply made less extensive the rights included in such easement. Appellee had not taken actual possession of the land at time of filing supplemental petition; and, for that matter, took no steps toward building its transmission line at any time before the trial. A condemner can abandon the taking of property, in whole or in part, after it makes its deposit and secures right of possession provided the status quo can be restored. Surely the landowner cannot claim prejudice here, the status quo not having been disturbed, and appellants in the mentioned points do not even assert prejudice.
“An agency clothed with power of eminent domain may not be forced to take land against its will, and, therefore, a condemnor who has not taken possession of land sought to be condemned has right to dismiss suit as to all or portion of land involved if project is to be abandoned, location changed, or project to be accomplished with less land than that initially sought.” Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, syl. 1.
“Where, after an award of commissioners, a trial was had in condemnation proceedings, under Sayles’ Civ.St. art. 4468 (now Vernon’s Ann.Civ.St. art. 3266), authorizing such a trial, as in other civil cases, on the filing of opposition to the commissioners’ award, the court may permit plaintiff to amend his application so as to ask for a condemnation of a less quantity of land.” Texas & N. O. R. Co. v. Postal Tel. Cable Co., Tex.Civ.App., 52 S.W. 108, syl. 2.