joined by Justices Walker and Green-hill, dissenting.
I cannot agree that relators are entitled to the writ of mandamus they seek.
I agree with the conclusion of the majority that as now written Article 3269 applies to three classes of suits, to-wit: Cl) suits for property; (2) suits to recover damages to property occupied by one having a right of eminent domain, and (3) suits brought for an injunction to prevent one claiming the right of eminent domain from going upon property or making use thereof. I agree also with the conclusion of the majority that this is a class (1) suit and not a class (2) or class (3) suit. I further agree that relator’s suit was not attacked on the ground *305that it was filed in bad faith. My agreement with the majority ends at that point.
The important question in the case is this: Does the proviso at the end of Article 3269 require a district court, upon denying injunctive relief to one out of possession of property but having the right of eminent domain and wishing to obtain immediate possession, to fix security for the payment of damages? Article 3269 clearly requires the fixing of security only as a prerequisite to denying injunctive relief. We have held that in a case to which the statute is applicable the fixing of security is mandatory rather than discretionary as the literal wording of the statute seems to imply. City of Houston v. Adams, 154 Texas 448, 279 S.W. 2d 308. The majority now interpret the statute to mean that the fixing of security is mandatory when injunctive relief is denied to any party to a suit who may seek it in any of the three classes of suits. In my opinion that interpretation distorts the meaning of the statute and will lead to unreasonable results. It is my opinion that the duty to fix security exists only when injunctive relief is sought by and denied to an owner-condemnee, and that it exists, therefore, only when an owner-condemnee, by suit or by cross-action, seeks by injunction to prevent a condemnor, out of possession, from going into possession, or to prevent a condemnor who has gone into possession from using the property. It seems to me that that interpretation of the statute is impelled both by its wording and its history.
I have said that the majority’s interpretation will lead to strange and unreasonable results. Under the majority’s interpretation if one having the power of eminent domain has a title dispute with the owner-condemnee and is out of possession but wishes immediate possession without obtaining it by force, he must think up some basis for asking for injunctive relief and then induce the court to deny the relief he has asked else he will have no right to put up the statutory security and go into immediate possession. The statute would then be bereft of all logic and reason. That would be so because the statute requires that security be given as a prerequisite to a denial of injunctive relief and that it be given by the condemnor. The only type of injunctive relief which could be asked by a condemnor would be such as would prevent the condemnee from obstructing or interfering with the condemnor’s right to go into possession, as in this case, or, being in possession, to continue using the property. To get into possession or to continue using the property against an interfering condemnee, a condemnor needs injunctive relief and it is only when that relief is granted, not denied, that a con*306demnee needs the protection of security. And if granted, the condemnee would be protected by the injunction bond. It would be foolish to say that the Legislature intended that a trial judge, in either of those fact situations, should have to say to the condemnor: “In order to get possession of or to use the property you need an injunction to remove obstructions. If I should grant it the condemnee would then need security to protect him, but .1 could not require you to give the statutory security because the statute permits me to require you to give it only if I deny you injunctive relief. I will therefore deny you the injunctive relief you seek, which means that the condemnee may continue to obstruct your possession or use of the property and will not need security, but before I deny it I must require you to give security. Having given it, you then get all the relief you would have gotten if I had granted it.” I cannot believe the Legislature ever intended the playing of any such legal tiddle-dy-winks.
Neither of the cases cited by the majority and by relators supports their interpretation of the statute or the judgment granting the writ of mandamus. In Magee Heirs v. Slack, 152 Texas 427, 258 S.W. 2d 797, the only pertinent question decided was that Article 3269 gave to one having the power of eminent domain an alternative right of condemnation in a suit for title in the district court, regardless of whether he appeared in the suit for title as plaintiff, defendant or intervenor, and even though he was not in possession. The question of the right of one out of possession but having the right of eminent domain to have the court fix security was not in the case. In City of Houston v. Adams, 154 Texas 448, 279 S.W. 2d 308, suit was by Adams to enjoin the City from continuing the flooding of plaintiff’s property. By way of answer the City asserted title to the property and alternatively sought its condemnation. A temporary injunction was granted to Adams. Thereafter, the district court refused to dissolve the injunction and refused to fix security as a condition to dissolving it. The effect of our holding- was that it was the mandatory duty of the district court to fix security and upon the giving of the security to dissolve the injunction. It will be noted that the injunction was not sought by the City but was sought by the owner-condemnee. Our holding in the Adams case is brought into sharper focus by our citation and discussion in the opinion of Brazos River Gas Co. v. Brazos River C. & R. Dist., Texas Civ. App., 150 S.W. 2d 350, writ refused. We construed and reapproved the holding in that case as a holding that no right to injunctive relief exists in an owner-condemnee when a condemnor, out of but wishing to obtain possession, tenders the security thé' court fixes as á *307condition precedent to immediate entry. To the same effect is Brazos River C. & R. Dist. v. Costello, 135 Texas 307, 143 S.W. 2d 577. In these cases the injunctive relief was sought by the owner-condemnee and no case, so far as I am aware, is authority for what the majority have held in this case.
When the statute is examined as an entirety it seems clear to me that in saying “if injunctive relief is sought” the court may grant it, or may, as a prerequisite to denying it, fix security “for the payment of any damages that may be assessed,” the Legislature was referring to injunctive relief sought by the owner-condemnee. If he sought injunctive relief and the court granted it and the condemnor was thus excluded from the property or from using it, he would need no security. But if it was denied and the condemnor went into possession and began to use it, or being in possession was permitted to continue to use it, the owner-condemnee would need security to protect him if it should later be determined that he was in fact the owner. The fact that we held in City of Houston v. Adams, supra, that the denial of injunctive relief to the owner-condemnee was mandatory rather than discretionary does not militate against that reasoning. Moreover, to permit a condemnor to post security and go into possession of property over the protest of an ownercondemnee would be, in effect, to grant an injunction if one were sought by the condemnor. Furthermore, the only class of suit described in the first part of the statute to which the proviso words “if injunctive relief be sought” can be expressly tied is the third class: “when a suit is brought for an injunction to prevent them or it [one having a right of eminent domain] from going upon such property or making use thereof for such purposes.”
I need not review the history of Article 3269 in detail. It is enough to review it in a general way. That history supports the interpretation of the statute here espoused. Prior to the enactment of the forerunner to Article 3269 in 1889, the exclusive method of exercising the power of eminent domain was by special proceedings to condemn by the one having the power. The International & G.N. Ry. Co. v. Benitos, 59 Texas 326; Gulf, C. & S.F. Ry. Co. v. Poindexter, 70 Texas 98, 7 S.W. 316, 323; Galveston Wharf Co. v. Gulf, C. & S.F. Ry. Co., 72 Texas 454, 10 S.W. 537. The Act of 1889 (Acts Regular Session 21st Leg., p. 18) applied only to railroads, Pecos & N.T. Ry. Co. v. Malone, Texas Com. App., 222 S.W. 217, and permitted condemnation in a district court by a railroad only when it was shed for property occupied by it or for damages thereto. By the *308express terms of the Act condemnation was to be by cross-bill and a plea for condemnation operated as an admission of the plaintiff’s title. It was carried into the Revised Civil Statutes of 1911 as Art. 4472 and the 1914 statutes as Art. 6531 in that form. By the time it was carried into the Revised Civil Statutes of 1925 it was broadened to apply to all having the power of eminent domain but its provisions otherwise remained the same. By an Act of the Regular Session of the 42nd Leg., ch. 245, p. 413, the statute was again amended. As amended, however, the right to condemn in the district court continued to exist only when the one having the power was defendant and by way of cross-bill. It was in this Act that the three classes of suits were first set up, that is, suits for property, for damages to property, or for injunction to prevent the condemnor from going on property or making use thereof. It is of special significance also that it was in this Act that the proviso now appearing in Article 3269 was added and that it was added in almost the exact language in which it appears in that Article today. In other words, the provision for the giving of security as a condition to denial of injunctive relief, as originally enacted, could only have applied to a situation in which injunctive relief was denied to an owner-condemnee because the statute contained no provision for one having the power of eminent domain to initiate a suit as plaintiff and seek injunctive relief. The 1931 Act also added the new provision that a plea for condemnation by cross-bill did not constitute an admission of title in the opposite party. The Article was amended again and put into its present form in 1945 by Act of the 49th Leg., ch. 259, p. 404. Under that amendment the right to condemn in the district court was extended to the party having the power of eminent domain whether that party apneared in the case as plaintiff, defendant or intervenor, but there is no language in the body of the Act, its caption or emergency clause indicating an intention of the Legislature that the right to give security was extended to fact situations in which the condemnor might seek some type of injunctive relief and have it denied.
In this case relators instituted condemnation proceedings against some owning interests in the property sought to be condemned. Proceedings Were not instituted against respondents. When relators sought to go into possession of the property, respondents used self-help to keep them out. That presents a fact situation which the Legislature did not envision when Article 3269 was last amended. Relators had two courses open to them. Gregg v. Lower Nueces River Water S. Dist., Texas Civ. App., 303 S.W. 2d 812, writ refused. They "could admit respondent’s *309title and institute regular condemnation proceedings against them. Art. 3264; Houston N.S. Ry. Co. v. Tyrrell, 128 Texas 248, 98 S.W. 2d 786, 793. By taking that course and depositing the amount of any award made by special commissioners, subject to respondents’ right of withdrawal, with additional security, they could have secured possession in a very brief time. Art. 3268; Thomas v. Housing Authority of City of Dallas, 153 Texas 137, 264 S.W. 2d 93. The other course open to them was to sue for title in the district court, but if they took that course the statute gave them no right to acquire immediate possession unless respondents sought injunctive relief. They took the latter course and we should not now judicially extend the provisions of the statute in order to relieve them of the necessary effect of having made a bad choice. In doing so we give relators all of the advantages they might have had through regular condemnation proceedings and relieve them of all of the burdens.
What relators really need and want as the only effective remedy for the plight in which they find themselves is a mandatory injunction to require respondents to remove the barriers which, by self-help, they have erected to prevent an entry on the property. They prayed for that type of relief by asking for a temporary injunction in the trial court but it was denied. If an injunction was erroneously denied their remedy was by an appeal to the Court of Civil Appeals for a revision of the judgment. What we are really asked to do in this mandamus proceeeding is to direct the trial court to fix the statutory security and then to reverse the trial court’s judgment denying injunctive relief and render judgment granting it when relators have not appealed from the trial court’s judgment. This we are not justified in doing except by rewriting Article 3269.
Opinion delivered October 21, 1959.
Rehearing overruled December 16, 1959.