City of Austin v. Capitol Livestock Auction Company

• Decision Date: 18 March 1970
• Docket Number: No. B--1290,B--1290
• Citation: 453 S.W.2d 461
• Parties: The CITY OF AUSTIN et al., Petitioners, v. CAPITOL LIVESTOCK AUCTION COMPANY, Inc., Respondent.
• Court: Texas Supreme Court

Page 461

453 S.W.2d 461

The CITY OF AUSTIN et al., Petitioners, v. CAPITOL LIVESTOCK AUCTION COMPANY, Inc., Respondent.

No. B--1290.

Supreme Court of Texas.

March 18, 1970.

Rehearing Denied May 6, 1970.

H. Glenn Cortez, City Atty., Crawford C. Martin, Atty. Gen., Woodrow Curtis and Dudley Fowler, Asst. Atty. Gen., Austin, for petitioners.

Garey, Colbert & Kidd, Jack Garey, Austin, for respondent.

POPE, Justice.

City of Austin instituted this eminent domain suit against Capitol Livestock Auction Company, Inc., for the purpose of taking 0.8107 of an acre of land needed for widening Highway 183. The trial court rendered judgment against the condemnor upon the basis of jury findings that the market value of the land taken was $41,678, the value of the remainder before the taking was $258,322, and the value of the remainder after the taking was $150,000. The trial court subtracted the sum of $38,500 which the condemnor had deposited following the commissioners' award, added the interest from the date of taking to the date of judgment and rendered judgment in the sum of $141,555 for Capitol Livestock. The court of civil appeals affirmed the judgment of the trial court. 434 S.W.2d 423.

The condemnor urges that the courts below erred in rendering judgment for damages done to a remainder tract because there was no remainder tract at the time of the taking. Condemnor also urges that, as to the part taken, the trial court erred in admitting evidence of a sale made to the Southwestern Bell Telephone Company. It says that the sale was not a comparable sale, because the telephone company possessed the power to condemn. We sustain the condemnor's first contention, but the other point presents harmless error under the record.

The courts below should not have rendered judgment for damages to the land the condemnor did not take, because the condemnee had sold the remainder tract prior to the date of taking. The City of Austin filed its original petition in eminent domain on September 27, 1962, and described the land to be taken as 0.8107 of one acre of land 'out of' a larger tract. At that time Capitol Livestock was operating cattle auction facilities on a 7.5 acre tract. The part which the condemnor planned to and later did take was used for a parking area, and the remaining 6.69 acres were used for such facilities as livestock pens, a barn, cafe building, office bilding and an auction arena. On October 29, 1962, the commissioners made their award of $38,500, and the award recited that it included severance damages. On November 1, 1962, Capitol Livestock, as vendor, and Finley D. Blackwell, as vendee, entered into a written contract by which the vendor agreed to convey the remainder of the property to the vendee or his assigns for a consideration of $150,000. $25,000 was then placed in escrow pending the closing of the trade, $50,000 was to be paid on closing, and the balance was to be paid in three annual installments of $25,000 each. On November 5, Capitol Livestock surrendered possession of the remainder tract to its vendee. On November 6, Capitol Livestock filed objections to the award. On December 11, 1962, the vendor and vendee signed a joint letter to the escrow agent wherein they wrote: '* * * the terms of the contract have been fulfilled by all parties thereto and you are hereby authorized to deliver the $25,000 held in escrow to Capitol Livestock * * *.' The escrow agent on that date surrendered the escrow money to Capitol Livestock and its vendee paid Capitol Livestock the additional sum of $50,000. On that date Capitol Livestock executed its deed but the deed was not delivered until several days later. Capitol Livestock stated that this delay was intentional and was to make sure the checks cleared the bank.

The day after the December 11 closing of the trade, the City of Austin deposited the sum of $38,500 in the registry of the county court. The deed from Capitol Livestock was recorded on December 21, 1962. In January 1963, the City took actual possession of the 0.8107 of an acre but it has never been in possession of any part of the other 6.69 acre tract. The case was not heard on appeal from the commissioners' award until May 8, 1967. Prior to the commencement of the trial on appeal, the condemnor filed a motion to suppress any evidence concerning damages to a remainder tract. Its contention was that damages which an owner may recover are measured by the fair market value of the land on the date of the taking which was December 12, 1962, and on that date, Capitol Livestock owned the 0.8107 of an acre which was taken, but it did not own any remainder. The condemnor attached to its motion the documents which showed the contract of sale, the executed deed, the joint letter of the buyer and seller to the escrow agent and the condemnor's deposit of the award. The trial court overruled the motion to suppress, and the condemnor then made proof of the facts stated above by a bill of exception. The court of civil appeals affirmed the judgment, which allowed damages to the remainder. In our opinion this was error.

Capitol Livestock was entitled to receive in the condemnation proceedings the market value of the land taken and damages to any remainder of the tract it owned as of December 12, 1962, the date of the taking. 'It is the owner at the time of the taking, not the owner at an earlier or later date, who is entitled to the compensation.' 26A C.J.S. Eminent Domain § 196; Williams v. State, 177 S.W.2d 106 (Tex.Civ.App. 1943, writ ref.). With respect to lands that are actually taken, the rule is: 'In general, where property is conveyed after the commencement of condemnation proceedings but before the time when the taking is complete, the purchaser is entitled to the compensation, unless such compensation is expressly reserved to the grantor.' 29A C.J.S. Eminent Domain § 202, p. 911; Brazos River Conservation & Reclamation District v. Harmon, 178 S.W.2d 281, 286 (Tex.Civ.App.1944, writ ref. w.o.m.); Powell v. Carson County, 62 Tex.Civ.App. 197, 131 S.W. 235 (1910, writ ref.); Calhoun County v. Logan, 262 Ala. 586, 80 So.2d 529 (1955); Bank of America of California v. City of Glendale, 4 Cal.2d 477, 50 P.2d 1035, 1037 (1935); Security Co. v. Rice, 215 Cal. 263, 9 P.2d 817 (1932); Hamilton v. Big Medicine Drainage Dist. No. 1, 217 Mo.App. 247, 261 S.W. 940 (1924); North Carolina State Highway Comm. v. Hettiger, 271 N.C. 152, 155 S.E.2d 469 (1967); Annotation, 82 A.L.R. 1063.

The basis for damages to a remainder tract is that there is unity of use and unity of ownership with that tract and the part actually taken. Texas-New Mexico Pipeline Company v. Linebery, 326 S.W.2d 733, 739 (Tex.Civ.App.1959, writ ref. n.r.e.); McLennan County v. Stanford, 350 S.W.2d 208 (Tex.Civ.App.1961, no writ); 27 Am.Jur.2d., Eminent Domain, § 320, 29A C.J.S. Eminent Domain § 181; 95 A.L.R.2d 887, 890 et seq; 6 A.L.R.2d 1197. Logically, for one to recover damages to a remainder tract, there must be a remainder on the date of the taking. Under the facts of this case, Capitol Livestock did not own any remainder tract on December 12, 1962. Equitable title was in the vendee in possession as of November 5, 1962. In Leeson v. City of Houston, 243 S.W. 485, 488 (Tex.Comm.App.1922, Jdgmt. adopted) the court said:

'By the great weight of authority it is now held that, although the legal title does not pass to the vendee under a contract of sale until actual delivery of a deed to the property still the vendee under such contract of purchase, especially where he goes into possession of the property, is invested with the equitable title from the date of the contract, or in any event, from the date he takes possession, and any increment, advantage, or enhancement to the property inures to his benefit, and any detriment, depreciation, or loss thereto without fault of either party must be borne by him. * * *.'

In City of Garland v. Wentzel, 294 S.W.2d 145 (Tex.Civ.App.1956, writ ref. n.r.e.) Wentzel sued for damages done to his property by reason of air pollution from a sewage disposal plant. City of Garland urged that the Veterans Land Board retained legal title to the tract damaged, and it was not made a party to the suit. The court held that Wentzel, as owner of the equitable title,...