City of Abilene v. Blackburn

• Decision Date: 31 October 1969
• Docket Number: No. 4333,4333
• Citation: 447 S.W.2d 474
• Parties: CITY OF ABILENE, Appellant, v. W. H. BLACKBURN, Jr. et al., Appellees. . Eastland
• Court: Texas Court of Appeals

Page 474

447 S.W.2d 474

CITY OF ABILENE, Appellant, v. W. H. BLACKBURN, Jr. et al., Appellees.

No. 4333.

Court of Civil Appeals of Texas Eastland.

Oct. 31, 1969.

Rehearing Denied Nov. 28, 1969.

Ben Niedecken, Jr., City Atty., Don R. Butler, Whitten & Butler, Abilene, for appellant.

McMahon, Smart, Sprain, Wilson & Camp, Bob Surovik, Abilene, for appellees.

COLLINGS, Justice.

The City of Abilene brought this eminent domain proceeding against W. H. Blackburn, Jr., and others to acquire certain property belonging to the defendants for the purpose of expanding the Abilene municipal airport. The case was tried before a jury which found that on June 26, 1968, the time at which the 35.34 acres of land was taken by the City for the enlarging and improvement of its airport, the property including improvements had a market value of $21,534.00; that the market value of the remaining 106.82 acres prior to the taking by the City was $61,421.50, and that the value of such remainder after the taking was $53,410.00, which difference amounted to $8,011.50. Based on the verdict, judgment was rendered for defendants in the amount of $29,545.50. The City of Abilene has appealed.

Appellant presents 12 points complaining of the action of the court in admitting testimony, and several points contending that there was no evidence to support the findings of the jury upon which the judgment is based, or that such findings are against the great weight and preponderance of the evidence. We will first consider the points complaining of the alleged improper admission of testimony.

In appellant's 10th, 11th and 12th points it is contended that the court erred in allowing testimony (10) as to the possibility of the remainder of appellees' land being annexed by the City of Abilene, (11) erred in allowing testimony as to the possibility or necessity of the acquisition of air easements over the remainder of appellees' property and (12) erred in allowing testimony as to the possibility of zoning regulations, or other police power regulations being enacted which might affect the remainder of appellees' property. In our opinion the evidence complained of showed that the City of Abilene in its plan of annexation contemplated aerial easements or zoning restrictions which would affect the remainder of appellees' property and that such evidence was properly admitted because it was material to a determination of the market value of the property after the completion of the airport expansion project. In the case of City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954), Justice Calvert, speaking for the court, stated as follows:

'We are unwilling to lay down a hard and fast rule that in arriving at market value consideration may never be given to a use for which property is reasonably suitable and adaptable but which use is presently prohibited by a zoning ordinance. It is a matter of common knowledge that cities frequently lift zoning ordinances or reclassify property in particular zones when the business or wants of the community justifies that type of action in the interest of the general public welfare. At the same time, we cannot announce a rule, except in general terms, that should be applied in all cases where zoning ordinances or other legal restrictions existing at the time of the taking prohibit the use of the property for purposes other than those to which it is devoted. If the trial judge is satisfied from the evidence as a whole that there is no reasonable probability that existing restrictions may be lifted within a reasonable time, he should exclude evidence of value based on use for any purposes other than those to which it is restricted. On the other hand, if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available.'

It is held that a wide range of factors may be considered by qualified witnesses as a foundation for their opinion as to depreciated market value of property involved in condemnation cases and that the parties in such cases have the right to introduce evidence of anything which would tend to affect the value of the land in the eyes of a prospective purchaser or which would tend to make it more or less valuable to the owner. South Texas Electric Cooperative, Inc. v. Ermis, 396 S.W.2d 955, (Ct.Civ.App., 1965, no writ history) and cases cited therein. See also City of Beverly Hills v. Anger, 127 Cal.App. 223, 15 P.2d 867. Appellant's 10th, 11th and 12th points are overruled.

In its 4th, 5th, 6th, 7th, 8th and 9th points appellant complains of the action of the court in admitting testimony as to the sales prices of several claimed comparable tracts of land which were smaller in acreage than the tract here taken by the City, which smaller tracts had previously been cut up from larger pieces of land in the general vicinity of the land here condemned. Appellant contends that the evidence concerning such sales was not admissible because the sale of such smaller tracts by reason of their size were not comparable to the 35.34 acre tract being condemned by the City. None of the sales involved lots from a subdivision. The evidence of the sales of such smaller tracts of which appellant complains involved tracts varying in size from 5 acres up to 10, 14, 15 and 25 .5 acres at prices ranging from Six Hundred to Seven Hundred Dollars per acre depending upon the availability of water. The jury found, in effect, that the value of the land here condemned and damaged before the taking was $575.00 per acre.

It is held that when sales of other lands are referred to by way of comparison, such lands must be so situated and so similar in character as to afford a fair basis of comparison, and such sales must not be too remote in time or distance to be treated as similar sales. 22 Tex.Jur.2d 426; Housing Authority of City of Dallas v. Shambry, 252 S.W.2d 963, (Ct.Civ.App., 1952, writ ref.); Curfman v. State, 240 S.W.2d 482, (Ct.Civ.App., 1951, ref. n.r.e.). It is further held to be largely within the sound discretion of the trial court to determine whether claimed comparable sales are so similar and near enough in time and distance to be admissible in evidence. 22 Tex.Jur.2d 425; Cravens v. City of Amarillo, 309 S.W.2d 903, (Ct.Civ.App., 1958, dism. WOJ); State v. Childress, 331 S.W.2d 230, (Ct.Civ.App., 1959, ref. n.r.e.); Crouch v. State, 413 S.W.2d 141, (Ct.Civ.App., 1967); State v. Hamman, 377 S.W.2d 727, (Ct.Civ.App., 1964, no writ history); Holcombe v. City of Houston, 351 S.W.2d 69 (Ct.Civ.App., 1961, no writ history). In our opinion the court did not abuse its discretion in admitting evidence of the sales complained of. Such sales involved lands in the general vicinity of that being condemned and although the tracts involved were smaller they were not so dissimilar as to render them inadmissible. Appellant's witness Wayne Austin tetified concerning the sale of a 20 acre tract for $375.00 per acre and the sale of a 25.5 acre tract for $500.00 per acre. The size of these tracts do not differ greatly from that of the tracts of which appellant complains. Appellant's witness also testified concerning sales of other tracts ranging up to 243 acres in size which tracts were much less comparable to the land being condemned than those of which appellant complains. Appellant's 4th, 5th, 6th, 7th, 8th and 9th points are overruled.

In appellant's first 3 points it is contended that the court erred (1) in permitting appellees to introduce evidence concerning the consideration paid by the City in the purchase of other land for the expansion of its airport and (2) erred in admitting such evidence as a basis for expert witnesses to arrive at an opinion of the...