In our opinion, this is not a proper case for the use of the remedy afforded by our declaratory judgment statute, Article 2524-1, Vernon's Ann.Civ.St.
For the purpose of this opinion, we accept as established the following statement taken from the brief of appellees:1
"While if is not shown in the record, by agreement of counsel, both Appellant and Appellees appealed from the order of the commissioners in the condemnation proceedings to the County Court of Travis County, Texas; said case is still pending on the docket of said court."
The very issue presented by the parties for our decision here is before the County Court in the condemnation case.2 We quote from Frankfurt v. Texas Turnpike *Page 298 Authority, Tex.Civ.App., Texarkana, 311 S.W.2d 261, 265:
"The rule seems to be well settled in Texas that the payment of rentals is a factor which must be considered in arriving at the fair market value of a lease. See Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575, er. ref., n. r. e.; Nichols on Eminent Domain, Sec. 12.42(3); State v. Parkey [Tex.Civ.App., 295 S.W.2d 457], supra. Business judgment and self-interest would dictate that a voluntary buyer be concerned with the seller's obligation to pay rentals together with all the onther terms and conditions of a lease contract."
We quote the following from an article by Joseph H. Taulane in 29 american Law Review, pp. 35-60, attached to appellant's brief herein:
"Whether or not the tenant continues liable for the rent is a most important element to be taken into consideration in estimating the landlord's and tenant's damages caused by the appropriation. It depends upon what answer we make to this inquiry, that the respective amounts of their compensation is determined."
Why, then, should we decide an issue which is properly before the County Court, and make two cases out of one?
The general rule, which should suffice to prevent meddling on our part, regarding garding the exclusive nature of the jurisdiction of the County Court in condemnation cases, is stated in Compton v. Texas Southeastern Gas Co., Tex.Civ.App., Houston, 315 S.W.2d 345, 349, writ ref., N.R.E., as follows:
"Under the authorities as we view them the County Court's Jurisdiction in a condemnation suit attaches immediately upon the filing of a petition containing the allegations requisite to condemn property under the statutes which describes the right-of-way or easement sought to be condemned with the certainty required in describing land in a deed. Ellis v. Houston T. C. Ry. Co., Tex.Civ.App., 203 S.W. 172, writ ref.; Texas Electric Service Co. v. Perkins, Tex.Com.App., 23 S.W.2d 320; Miers v. Housing Authority of City of Dallas, 153 Tex. 236, 266 S.W.2d 842; 16 Tex.Jur. 664, Eminent Domain, Sec. 324. The rule is well settled in this State that after a County Court has acquired jurisdiction in a condemnation suit, no other court is authorized to interfere with its proceedings. Ellis v. Houston T. C. Ry. Co., supra; Wilson v. Donna Irrigation Dist., Tex.Civ.App., 8 S.W.2d 187, no writ history; Benat v. Dallas County, Tex.Civ.App., 266 S.W. 539; Gill v. Falls County, Tex.Civ.App., 243 S.W.2d 277; Missouri, Kansas, Texas R. Co. v. Jones, Tex.Com.App., 24 S.W.2d 366."
See also 16 Tex.Jur. p. 640, where it is stated that, 'So long as it does not contravene constitutional limitations, a County Court which has obtained jurisdiction of a condemnation proceeding, has full authority to pass on all questions that arise * * * it may adjudge against the condemnor damages in any amount which the law and the facts may justify. * * *'
Directly and specifically in point is the case of Pickens v. Hidalgo County Water Control and Improvement Dist., 284 S.W.2d 784, 786, by Chief Justice Murray of the San Antonio Court of Civil Appeals, no writ history. This was a suit for a declaratory judgment filed in the District Court pertaining to a pending condemnation suit in the County Court. We quote from that opinion:
*Page 299"When the condemnation proceedings were filed in the County Court at Law, that court had exclusive jurisdiction to allow appellants compensation for all property taken, injured or damaged by the taking of the surface easement sought by appellee, including full
compensation for appellants' water and water rights. * * *"A court will not grant a declaratory judgment if the same issues between the same parties were involved in another cause pending at the time of the filing of the declaratory proceedings. The rule is stated thusly in 135 A.L.R. at pages 934-5:
"`Although there is apparently some conflict on the question, the rule which may be formulated from a reading of the cases as a whole, and under which most of the cases with apparently conflicting results may be reconciled, seems to be that jurisdiction of a declaratory judgment action will not be entertained if there is pending, at the time of the commencement of the declaratory action, another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the same identical issues that are involved in the declaratory action. (This rule is sometimes predicated on the power of the court, as a matter of judicial discretion, to refuse to entertain jurisdiction of the declaratory action, and sometimes on complete lack of jurisdiction.)"
"The following cases support the above rule: Jefferson Co. ex rel. Coleman v. Chilton, 236 Ky. 614, 33 S.W.2d 601; Joseph v. City of Ranger, Tex.Civ.App., 188 S.W.2d 1013; Georgia Industrial Realty Co. v. City of Chattanooga, 163 Tenn. 435, 43 S.W.2d 490. See also, 16 Am.Jur. 295; Anderson, Actions for Declaratory Judgments, Vol. 1, p. 47.
"Appellants call to our attention that the trial court, having found in effect that the County Court at Law had exclusive jurisdiction of the issues raised in the present suit and that it therefore was without jurisdiction, should have entered a judgment dismissing the cause, instead of a declaratory judgment that appellants take nothing. We sustain this contention."
See also 19 Tex.Jur.2d, Declaratory Judgments, Sec. 13. We also quote from 26 C.J.S. Declaratory Judgments § 20:
"As a general rule where a statute provides a special form of remedy for a specific type of case, the statutory remedy must be followed, and under such circumstances a declaratory judgment will not be granted. This is especially so where the statutory remedy is exclusive, or where the effect would be to interfere with the parties' right to appeal. On the other hand, it has been held that an action for a declaratory judgment is not barred by the fact that a statutory remedy is available, and an action for a declaratory judgment may be amintained, although a statutory method of determining the controversy is provided, where a showing of special circumstances sufficient to justify a failure to utilize the remedial provisions of the statute, is made, as where the statutory remedy is not an adequate substitute, and does not provide relief."
From § 22, id., we quote:
*Page 300"The rule that a declaratory judgment proceeding will not ordinarily be entertained where another remedy is available is especially applicable where another appropriate action involving the same subject matter and issues is already pending when the declaratory judgment proceeding is commenced, and in such a case the court, in the subsequent declaratory judgment action, except to the extent that it may be necessary, cannot declare rights as to the matters involved in the prior pending action, since such decisions and declarations must be made in the first instance by the court whose power is invoked and which is competent to decide them. It has been held, however, that the mere pendency of another action between the same parties, without more, is no basis for refusing declaratory
relief. A declaratory judgment may not be refused because of the pendency of another suit, if the controversy will not necessarily be determined in such suit. Where speedy relief is necessary to the preservation of rights which otherwise may be impaired or lost, courts will entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties."
It is obvious that none of the exceptions authorizing a declaratory judgment proceeding pertaining to the subject matter of a pending suit is applicable here.
We conclude by quoting from Aetna Casualty Surety Co. v. Yeatts, 4 Cir., 99 F.2d 665, 669, as follows:
"It is no answer to a suit for a declaratory judgment that the plaintiff may have an adequate remedy elsewhere or that he seeks to establish a defense to a pending claim rather than affirmative relief; but it is well established that the benefits of the statute should not be extended unless there is an actual present controversy between the parties, and even then the court should not decide the disputed question if the result would be merely to anticipate the trial of an issue involved in a pending case or to determine the validity of a defense which could be tried equally well therein or to try controversy piecemeal without complete decision of the matters in dispute."
We reverse the judgment and, insofar as the matter appealed is concerned, we dismiss the suit.
Reversed and dismissed.
Since this matter goes to our jurisdiction, or at least to the propriety of the exercise of our jurisdiction, we could initiate disquisition dehors the record, 15 Tex.Jur.2d p. 434.
We accept the statement of the case, as presented by the parties, made in the dissenting opinion of GRAY, J.