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IN THE
TENTH COURT OF APPEALS
 

No. 10-91-144-CV

     ROLAND LEE CHRISTIAN, ET UX.,
                                                                                              Appellants
     v.

     THE CITY OF ENNIS, TEXAS, ET AL.,
                                                                                              Appellees
 

From the County Court at Law
Ellis County, Texas
Trial Court # C-2471
                                                                                                    

O P I N I O N
                                                                                                    

      The City of Ennis filed this condemnation suit in the County Court at Law against Lisa and
Joe Glaspy to condemn the fee title in 6.08 acres.  Roland and Mary Lou Christian intervened in
the proceeding, alleging that they owned one-half of the air rights above the property.  At the
hearing on the motion to strike their intervention, they argued that they acquired an interest in the
air rights through a contract with the Glaspys.  They introduced the contract into evidence.  The
court struck their intervention, however, and entered a judgment vesting fee title in the City.
       A county court at law must transfer a condemnation case to the district court if the suit
"involves an issue of title."  Tex. Prop. Code Ann. § 21.002 (Vernon 1984); City of Houston
v. West, 520 S.W.2d 752, 754 (Tex. 1975).  The principal question to be decided is whether the
Christians raised an "issue of title."  We reverse the judgment and remand the cause for transfer
to the district court.
      The contract relied on by the Christians contains this provision:
For and in consideration of the covenants and agreements contained in one certain Earnest
Money Contract dated May 9, 1990[,] regarding a [6.08-acre] tract or parcel of land . . . [the
Glaspys and Christians agree] that in the event that the City of Ennis . . . pays for an air
easement over said real property for the use of aviation in the operation of the Ennis
Municipal Airport, then in that event the [Glaspys and Christians] shall divide said proceeds
equally.

      The owner of an easement in real property is entitled to be compensated if it is taken or
damaged.  Harris Cty. Flood Control Dist. v. Shell, 591 S.W.2d 798, 800 (Tex. 1980).  This is
true of air easements.  United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 1069, 90 L. Ed.
1206 (1946); City of Houston v. McFadden, 420 S.W.2d 811, 814 (Tex. Civ. App.—Houston
[14th Dist.] 1967, writ ref'd n.r.e.).  Thus, the Christians were clearly asserting an interest in the
real property when they alleged ownership of a one-half interest in the air easement.
      Did they own a legal or equitable interest in the property?  If they did, their intervention was
proper and should not have been stricken.  See Guaranty Federal v. Horseshoe Operating, 793
S.W.2d 652, 657 (Tex. 1990).  If they owned no interest, their intervention should have been
dismissed.  See Weissberger v. Brown-Bellows-Smith, Inc., 289 S.W.2d 813, 818-19 (Tex. Civ.
App.—Galveston 1956, writ ref'd n.r.e.) (holding that a party with no interest in the subject matter
of the suit is not entitled to intervene).  At least at the time of the hearing on the motion to strike
the intervention, the suit involved an issue of title.  See Coughran v. Nunez, 127 S.W.2d 885, 887
(Tex. Comm'n App. 1939, opinion adopted).
      The court could not rule on the motion to strike the intervention without determining the title
question.  To resolve the issue of title, it interpreted the contract on which the Christians based
their claim of title and, after apparently concluding as a matter of law that they acquired no title
to the air easement under the contract, dismissed the intervention without prejudice to their
"seeking relief in an appropriate proceeding."   However, by interpreting the contract to decide
the title dispute, the court failed to comply with section 21.002.  See Tex. Prop. Code Ann. §
21.002 (Vernon 1984); City of Houston, 520 S.W.2d at 753.
      Accordingly, we sustain point two, reverse the judgment, and remand the cause for transfer
to the district court.  See City of Houston, 520 S.W.2d at 754.  The remaining points are not
reached.  We express no opinion on the interpretation of the contract between the Christians and
the Glaspys.
 
                                                                   BOB L. THOMAS
                                                                   Chief Justice
Before Chief Justice Thomas,
      Justice Cummings, and Justice Vance
Reversed and remanded with instructions
Opinion delivered and filed May 6, 1992
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