Alexander v. City of San Antonio

Decision Date23 June 1971
Docket NumberNo. B--2425,B--2425
Citation468 S.W.2d 797
PartiesNick ALEXANDER et al., Petitioners, v. The CITY OF SAN ANTONIO, Respondent.
CourtTexas Supreme Court

W. W. Palmer and Jewell D. Lemons, San Antonio, for petitioners.

Howard C. Walker, City Atty., Edgar A. Pfeil and Reymond W. Weber, Asst. City Attys., San Antonio, for respondent.

CALVERT, Chief Justice.

This suit grew out of a condemnation proceeding in which City of San Antonio condemned an easement over the southeast triangular portion of Lot 12, Block 2, Mont Calm Addition to the City of San Antonio, containing 3,808 square feet, for use in a drainage project. The lot was owned at the time by Nick Alexander and his wife, Josephine Alexander. Mr. Alexander died during pendency of the suit and the litigation has been continued by Mrs. Alexander for herself individually and as independent executrix of Mr. Alexander's will and estate.

The Special Commissioners assessed the Alexanders' damages at $210.00. They appealed to the County Civil Court at Law of Bexar County and withdrew the $210.00 which had been deposited with the clerk by City on January 20, 1965. Trial was to a jury which found in response to special issues that the cash market value of the land taken on January 20, 1965 was $2,400.00 and that by virtue of the taking the value of the remainder of the lot was diminished by $2,000.00. Judgment was accordingly rendered awarding City the easement sought and awarding Mrs. Alexander a judgment for $5,406.36, that sum representing the amount of the jury verdict of $4,400.00, less the $210.00 which had been deposited with the Clerk and was withdrawn, plus $1,216.36 interest. City appealed to the court of civil appeals at San Antonio. The case was transferred by this court to the Beaumont Court of Civil Appeals in an equalization order. That court reversed the trial court's judgment and remanded the cause to the trial court for retrial. Tex.Civ.App., 459 S.W.2d 487. We reverse the judgment of the court of civil appeals and remand the cause to that court for further consideration.

The court of civil appeals sustained City's points of error complaining of trial court action in overruling certain of City's special exceptions to the Alexander pleading and in admitting evidence claimed by City to have been inadmissible and prejudicial. The special exceptions were directed at the Alexander pleadings wherein it was alleged that a 'taking' of the property had occurred in early 1961 by virtue of conduct of City, while erecting drainage structures in the street, in entering upon the property and digging a ditch and thereby creating a gully and general erosion. The evidence objected to included photographs, both motion and still, showing the condition of the property condemned before the 1961 drainage improvements were made and its condition thereafter up to January 20, 1965. The court of civil appeals was of the opinion that the effect of overruling the special exceptions and letting in the evidence was to permit the Alexanders to recover damages in this eminent domain suit for the earlier tortious trespass, which action was held by the court to be erroneous under a decision by the Waco Court of Civil Appeals in McLennan County v. Umberson, 358 S.W.2d 228 (Tex.Civ.App.--Waco 1962, writ ref'd n.r.e.). The court sought to distinguish Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642 (1956), and State v. Lasiter, 352 S.W.2d 915 (Tex.Civ.App.--Waco 1961, writ dism'd). Mrs. Alexander contends that the question is ruled by Glade v. Dietert and State v. Lasiter. Although there is language in Umberson which appears to place that decision in conflict to some extent with the latter two cases, analysis reveals no conflict.

In Glade v. Dietert, we held that damages flowing from a prior trespass on land could be recovered in a suit to condemn the land on which the trespass occurred. In that case a contractor for the City of Fort Worth entered upon land owned by Dietert and cut down trees. The city later instituted proceedings to condemn an easement over the strip of land from which the trees were cut. We said:

'* * * (T)he law should not be so strictly construed as to preclude respondents (Dieterts) from recovery in the county court, in the case now pending on appeal from the award of the commissioners (the condemnation case), of all damages to which they may be entitled, including the diminishment of the land value caused by removal of the trees.' 295 S.W.2d 646.

In speaking of 'diminishment of the land value' we had reference to diminished value of the tract being taken and not to diminution in value of the remainder not taken.

In State v. Lasiter, the City of Groves constructed a sewer line across property of Lasiter at the instance of the State Highway Department without any legal right to do so. Some six months later, the State took an easement over the property for highway purposes in a condemnation proceeding. On trial of the condemnation case, the court suppressed all evidence of the existence of the sewer line across the property condemned. The State contended on appeal that the trial court erred in suppressing the evidence because the existence of the sewer line at the time of the taking diminished the value of the land taken and was for that reason admissible. The...

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10 cases
  • Gully v. Southwestern Bell Telephone Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 24 Octubre 1985
    ...to profit from its own trespass by taking advantage of the lower value of the property as of March, 1982. Cf. Alexander v. City of San Antonio, 468 S.W.2d 797, 800 (Tex.1971). 11 The legal date of taking was March, 1984, 12 and the value of the property condemned was correctly computed as o......
  • Arkansas Louisiana Gas Co. v. Allison, 1459
    • United States
    • Texas Court of Appeals
    • 30 Julio 1981
    ...or unlawful entry upon premises occurring before condemnation may be tried together with the condemnation suit, Alexander v. City of San Antonio, 468 S.W.2d 797, 799 (Tex.1971); State v. Lasiter, 352 S.W.2d 915, 917 (Tex.Civ.App.-Waco 1961, writ dism'd); Glade v. Dietert, 156 Tex. 382, 295 ......
  • City of Fort Worth v. Corbin
    • United States
    • Texas Supreme Court
    • 16 Enero 1974
    ...Dist. No. 1 v. Fowler, 175 S.W.2d 694 (Tex.Civ.App.1943), writ ref'd w.o.m., 142 Tex. 375, 179 S.W.2d 250, 1944); Alexander v. City of San Antonio, 468 S.W.2d 797 (Tex.1971). There is no disagreement about these standards. Nor is there any doubt about the proposition that the landowners' co......
  • Joleewu, Ltd. v. City of Austin
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 1 Noviembre 1990
    ...they may be entitled, including the diminishment of the land value caused by the [pre-condemnation trespass]"); Alexander v. City of San Antonio, 468 S.W.2d 797, 798 (Tex.1971) (Glade held that "damages flowing from a prior trespass on land could be recovered in a suit to condemn the land o......
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