State v. Heal

• Decision Date: 18 January 1996
• Docket Number: No. 94-1187,94-1187
• Citation: 917 S.W.2d 6
• Parties: 39 Tex. Sup. Ct. J. 221 STATE of Texas and City of Dallas, Petitioners v. John C. HEAL et ux., Marie C. Heal et al., Respondents.
• Court: Texas Supreme Court

Page 6

917 S.W.2d 6

39 Tex. Sup. Ct. J. 221

STATE of Texas and City of Dallas, Petitioners v. John C. HEAL et ux., Marie C. Heal et al., Respondents.

No. 94-1187.

Supreme Court of Texas.

Argued March 22, 1995.

Decided Jan. 18, 1996.

Mark L. Bryza, Dallas, for Petitioners.

Douglas H. Conner, III, Eddie Vassallo, Charles A. Salazar, Dallas, for Respondents.

On application for writ of error to the Court of Appeals for the Fifth District of Texas.

Justice ENOCH delivered the opinion of the Court on Motion for Rehearing. Justice ABBOTT not sitting.

The motions for rehearing are overruled. Our opinion of November 2, 1995, is withdrawn and the following is substituted in its place.

This is a condemnation case. The issue presented is whether the Heals are entitled to severance damages for the diminution in the value of the remainder of their property resulting from the widening of Southwestern Boulevard in conjunction with the North Central Expressway expansion project in the City of Dallas. Because the Heals are precluded from recovering compensation for any diminution not directly related to the taking of their property, and they have failed to establish materially and substantially impaired access, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.

In 1989, the State of Texas condemned 436 square feet of John and Marie Heal's residential lot in order to widen Southwestern Boulevard where that street approached its intersection with North Central Expressway. The Heals' lot is the third lot west of that intersection on the south side of Southwestern Boulevard. According to the State, ¹ Southwestern Boulevard is being widened as it approaches the southbound service lane of the Expressway to allow the intersection to align with a new and larger bridge that will be built over North Central. Southwestern will not be widened west of the Heals' property, but rather the widened portion will narrow in front of the Heals' property to the street's original configuration.

In conjunction with this project, the State will erect a barrier wall adjacent to the residential area along the southbound service lane of the Expressway between Southwestern Boulevard and Lovers Lane to reduce noise affecting residents on the interior streets. Lovers Lane is the next main thoroughfare south of Southwestern. The interior streets which once fed onto the southbound service road will be closed off. Therefore, the only means by which residents on these streets may access southbound Central Expressway will be by either Southwestern or Lovers Lane via a local cross street.

After the State announced its plan to widen Southwestern, special commissioners were appointed to hear the State's petition for condemnation. The Heals appealed the commissioners' award in the county court at law, claiming damages for the State's taking of their property and the diminution in value of the remaining lot because the condemnation will cause more traffic and a bottleneck which will impair access. The trial court admitted evidence over the State's objection regarding its decision to barricade the interior streets between Southwestern and Lovers Lane and traffic projections for Southwestern and Lovers Lane for the year 2010. The jury found that the value of the 436 square feet taken was $6,853, and that the diminution in value to the remainder of the property was $43,147. The State did not contest the finding with respect to the value of the property taken, but appealed the finding of damages to the remainder. The court of appeals affirmed the trial court's judgment. 884 S.W.2d 864.

I. Compensable Damages

We must first address the State's contentions that, as a matter of law, the Heals are not entitled to compensation for the damages they have alleged. Section 21.042(c) of the Property Code provides:

If a portion of a tract or parcel of real property is condemned, the special commissioners shall determine the damage to the property owner ... including the effect of the condemnation on the value of the property owner's remaining property.

Initially, the State argues that the rule set out in Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (1924), bars the Heals from recovering severance damages. Campbell held that compensation for a taking should not include damages to the remainder caused by the acquisition and use of adjoining property. Campbell, 266 U.S. at 372, 45 S.Ct. at 116-17. We adopted the Campbell rule in State v. Clark, 161 Tex. 10, 336 S.W.2d 612, 618 (1960). State v. Schmidt, 867 S.W.2d 769, 778 (Tex.1993). We noted, however, that the Campbell rule had a necessary qualification. The Campbell rule controls unless:

(1) the land taken from the condemnee landowner was indispensable to the ... project; (2) the land taken constituted a substantial (not inconsequential) part of the tract devoted to the project; and (3) the damages resulting to the land not taken from the use of the land taken were inseparable from those to the same land flowing from the condemnor government's use of its adjoining land in the ... project.

Schmidt, 867 S.W.2d at 778 (quoting United States v. 15.65 Acres of Land, 689 F.2d 1329, 1332 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983)). In considering the Heals' damages, then, only the diminution in value of the remainder caused by taking 436 square feet of their property is considered, not the diminution caused by the Central Expressway project as a whole, unless the qualification is met. Campbell, 266 U.S. at 372, 45 S.Ct. at 116-17; Schmidt, 867 S.W.2d at 777-79; Clark, 336 S.W.2d at 618. For example, in holding against the property owners in Schmidt, we explained:

In the present case it is clear that the diminution in value claimed by Schmidt and Austex in their remaining property is due entirely to the State's modifications to Highway 183 and not to the use of the strip taken from each tract. The diversion of traffic, circuity of travel, and impaired visibility are all attributable to the conversion of Highway 183 to a controlled access highway. This conversion is to be accomplished, not on the small strips taken from the Schmidt and Austex tracts, but by changes in the entire roadway.

867 S.W.2d at 778.

Had the Heals sought damages merely for increased traffic, increased noise, and the overall impact of the Central Expressway project, their claims would be precluded. Campbell, 266 U.S. at 372, 45 S.Ct. at 116-17; Schmidt, 867 S.W.2d at 777-79. The Heals, however, also specifically seek compensation for the diminution in value of their property caused by the impaired access they assert will occur from the increased traffic and bottleneck. This type of damage is not necessarily attributable to the use of adjoining property in the sense contemplated by Campbell. To hold that Campbell governs in this case would be inconsistent with our prior decisions which are discussed below. In many of these cases, the impairments to access were caused by the use of adjoining lands. Although applicable under other circumstances, we have never considered Campbell to preclude recovery for impaired access.

As a second contention, the State asserts that the Heals have sustained only "community injuries," which are not compensable. Schmidt, 867 S.W.2d at 779. Regarding the difference between community and special damages, the Texas Property Code states:

In estimating injury or benefit [arising from a condemnation], the special commissioners shall consider an injury or benefit that is peculiar to the property owner and that relates to the property owner's ownership, use, or enjoyment of the particular parcel of real property, but they may not consider an injury or benefit that the property owner experiences in common with the general community.

TEX.PROP.CODE § 21.042(d).

The State argues that any increased traffic contributing to the bottleneck affects the entire neighborhood, and thus the damages are community injuries. However, the State makes the mistake of concentrating on the location rather than the nature of the injury. The concept of community injury is not primarily geographical. Schmidt, 867 S.W.2d at 781. The focus should be on the nature of the injury.

Impaired access is not a community injury. In Texarkana & N.W. R.R. v. Goldberg, 68 Tex. 685, 5 S.W. 824 (1887), we wrote:

The fact that the injury was common to all other property holders on the street would not bar the plaintiff's right of recovery. The plaintiff sues for a special damage to his own property by reason of defendant's having impaired the use of the street upon which it fronts.

Id. at 826. Thus, impaired access is different than mere circuity of travel and is a compensable special damage. Schmidt, 867 S.W.2d at 774. Our subsequent cases addressing damages for impaired access also recognize that this is a special injury. Archenhold Auto. Supply Co. v. City of Waco, 396 S.W.2d 111, 114 (Tex.1965); DuPuy v. City of Waco, 396 S.W.2d 103, 110 (Tex.1965).

II. Impairment of Access

Whether property has been "damaged" under the constitution is a question of law. Westgate, Ltd. v. State, 843 S.W.2d 448, 452 (Tex.1992); City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804 (Tex.1984); DuPuy, 396 S.W.2d at 110. Likewise, whether access rights have been materially and substantially impaired is a question of law. Schmidt, 867 S.W.2d at 777; State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex.1988); City of Waco v. Texland Corp., 446 S.W.2d 1, 2 (Tex.1969); DuPuy, 396 S.W.2d at 110. "It is incumbent upon the trial court to make this determination prior to trial and to control the admission of evidence accordingly." Wood Oil, 751 S.W.2d at 865. Although Schmidt, Wood Oil, Texland, and DuPuy involve inverse condemnation, the same rules apply to condemnation proceedings as apply in inverse condemnation proceedings. Schmidt, 867 S.W.2d at 777.

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