Calvert v. City of Denton, 16477
| Decision Date | 07 February 1964 |
| Docket Number | No. 16477,16477 |
| Citation | 375 S.W.2d 522 |
| Parties | Marvin CALVERT et al., Appellants, v. CITY OF DENTON, Texas, Appellee. |
| Court | Texas Court of Appeals |
William Petty and DeWitt O. Dunaway, Dallas, for appellants.
Lee E. Holt, Denton, for appellee.
A condemnation suit was instituted by the City of Denton to condemn a ten foot by seventy foot strip out of one lot for an easement in the construction and maintenance of electric power pole guy wires and anchors. Appellants are the owners of the lot upon which the easement lies and four additional lots all of which are contiguous and adjoining. The trial court limited the appellants' recovery to the value of the strip condemned plus damages to the remainder of the single lot upon which the easement lies.
The principal issue before this Court concerns the right of appellants to recover damages to the remainder of all five lots as a single tract of land rather than to be limited to the remainder of the single lot. The case is submitted upon an agreed statement as follows: The appellants are the owners of the five adjoining and contiguous lots which are nominally divided by lot lines appearing on maps or plats. There are no physical divisions. Driveways lead from the street to the garage or parking area of each lot. Each lot was acquired by a separate transaction at a different time from a different vendor and is rendered separately for taxation. A single family dwelling house, rented and occupied by separate tenants and used as a single family home, is located on each of four of the lots. The fifth lot is devoted to a business use by one of the appellants.
The parties further agree that: The highest and best use of the property would involve the use of all five lots as a single tract and that the appellants have sustained damages to the remainder of the property considered as a single tract additional to the damages to the remainder of the single lot. Reversed and remanded.
Article 3265 (subd. 3), Revised Statutes of Texas, relating to the measure of damages to be awarded the owner when only a part of a tract of land is condemned requires that the owner be paid as compensation the value of the land actually taken, plus any consequential damages to the remaining portion of the tract, including any diminution in the value thereof.
The appellants allege that over a period of time they acquired the property in question for business and other purposes and ultimately for development of a shopping center. The trial court held in effect that such intended future use was too speculative and that proffered testimony in support of such future use was inadmissible. The appellee contends that the lots are each used for a separate and independent purpose rather than as a combined unit for a common or unified purpose and therefore the damages to the 'remaining portion', referred to in Article 3265, supra, must be confined to the single lot.
The primary question before this court and the basic one in all cases involving severance damages is what constitutes a single tract of land as distinguished from separate ones. Under the authorities the answer does not depend upon artificial boundaries between tracts as may be reflected in the owner's chain of title or as may appear upon maps or plats. It would not in our opinion depend upon whether the owner acquired the tract under consideration in one or several transactions or rendered and paid taxes on them as single tracts or as a unit. Nor in our opinion would the determination of the question necessarily depend upon the uses to which the property was being devoted at the time.
The words, 'the remaining portion', contained in Article 3265, supra, imply that the land condemned is conterminous with other land of the same owner used by him for a common purpose and that the remaining portion of the land will be either increased or decreased in value because of the public use of the part condemned. If the remaining portion is contiguous it is immaterial that the whole tract is not enclosed by a fence or otherwise so as to place it all in the same enclosure. 22 Tex.Jur.2d Sec. 252. See also Rayburn, Texas Law of Condemnation, Sec. 160(1), pp. 455-460, p. 458 and cases cited.
The question of what constitutes a 'single' tract is not wholly dependent upon whether the tracts under consideration are physically contiguous. Such tracts may be separate ones if used separately. On the other hand tracts which may be physically separated from one another by railroads, highways, land or other barriers may constitute a single tract if devoted to an integrated unitary us or if the possiblity of their being so combined for a unified use in the reasonably near future is such as to affect market value.
In the case of McLennan County v. Stanford, Tex.Civ.App., 350 S.W.2d 208, the general rule was stated as follows: 'Where separate, but contiguous tracts are integral parts of an entity under common ownership in such physical and functional relationship that they are joined by unity of use by the same proprietor into a single property, they will be treated as a whole in assessing damages to the remainder in the taking of a part.' (See authorities cited.)
Texas Jurisprudence in its section under Eminent Domain states in effect that the value of land is to be confined to the actual use to which it is put by the owner only in those cases where there is an absence of any evidence showing its adaptability for another use will give it a greater value. 22 Tex.Jur.2d 274, Sec. 173 and continuing in the same text, 22 Tex.Jur.2d 277, 278, Sec. 174 and authorities cited. See also so 29 C.J.S. Eminent Domain Sec. 160, p. 1024; 18 Am.Jur. 878, 879.
Stated another way, value may reflect not only the use to which the property is presently devoted but also to that use to which it may readily be converted.
The record in this case reflects no legal impediments which would prevent the appellants from removing the tenant houses and other buildings from the...
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...contiguity is the test but that physical contiguity often has great bearing on the question of unity of use." Calvert v. City of Denton, 375 S.W.2d 522, 527 (Tex.Civ.App.1964); see also Baetjer, 143 F.2d at 395; Di Virgilio, 205 So.2d at 320; City of Lake Forest v. First National Bank of La......
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