City of Austin v. Capitol Livestock Auction Co.

• Decision Date: 06 November 1968
• Docket Number: No. 11576,11576
• Citation: 434 S.W.2d 423
• Parties: CITY OF AUSTIN and State of Texas, Appellants, v. CAPITOL LIVESTOCK AUCTION CO., Inc., Appellee. . Austin
• Court: Texas Court of Appeals

Page 423

434 S.W.2d 423

CITY OF AUSTIN and State of Texas, Appellants, v. CAPITOL LIVESTOCK AUCTION CO., Inc., Appellee.

No. 11576.

Court of Civil Appeals of Texas.

Austin.

Nov. 6, 1968.

Rehearing Denied Dec. 4, 1968.

Doren Eskew, City Atty., Austin, Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., Watson C. Arnold, Dudley Fowler, J. Bruce Willis and Woodrow Curtis, Asst. Attys. Gen., Austin, for appellants.

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

O'QUINN, Justice.

This is an eminent domain case in which the City of Austin condemned about eight-tenths of an acre of land for use in widening State Highway 183 between the Colorado River and the Bergstrom Interchange within the city limits.

The State of Texas intervened as party plaintiff shortly before the case went to trial because of its obligation to pay fifty percent of the costs of construction and acquisition of property.

The trial court entered judgment based on jury findings in the amount of $141,555 for Capitol Livestock Auction Company, Inc., in compensation for the taking of .8107 of one acre of land and for damages to the land remaining consisting of about 6.67 acres. The judgment made allowance for deposit of $38,500 withdrawn by the condemnee and included accrued interest from the date of taking.

The City of Austin and the State have appealed and assign 23 points of error. Appellee assigns 12 counter points of error.

The contentions of appellants under the assigned errors are stated briefly under six general headings:

(1) Appellee was not entitled to severance damages because it was not the owner of the remainder on December 12, 1962, the date of the taking of the 8/10th of an acre.

(2) It was error to exclude the opinion testimony of an expert witness (Culp) for appellants as to value of the remainder before and after the taking.

(3) Numerous errors in evidentiary matters relating to the tract as a whole and to the remainder resulted in an excessive and improper verdict and a judgment requiring reversal and remand of the cause.

(4) There was no evidence and insufficient evidence to support the jury's finding that $41,678 was the value of the land taken.

(5) It was error to allow an expert witness (Legge) for appellants to be examined by deposition as to testimony the witness gave before the commissioners.

(6) It was error to overrule motion of appellants to suppress evidence of the price a corporation having power of eminent domain paid for land across the highway from the land taken in this cause.

Hearing before the commissioners was October 23, 1962. The award of the commissioners was made October 29 and filed the next day. About two days later, on November 1, Capitol Livestock Auction Company, appellee, made a contract with another corporation to convey all of its land, except the part being taken for widening the highway. Possession of the 6.67 acres being sold was delivered pursuant to the contract of sale to the purchaser November 5. The parties held a closing of the sale December 11, and appellee executed a deed to the property the same day.

The following day, December 12, the City of Austin deposited the amount of the award made by the commissioners after the hearing of October 27.

When the case went to trial May 8, 1967, the parties were in agreement, and the trial court proceeded on the basis, that December 12, 1962, was the date of taking.

The condemning authorities took the position in the trial in 1967 and contend on appeal that Capitol Livestock Auction did not own the 6.67 acres on December 12, 1962, and therefore was not entitled to severance damages.

The trial court ruled as a matter of law that Capitol Livestock Auction on December 12 was owner of the 6.67 acres, which it had contracted to convey, and that the case would be heard as a partial taking.

Capitol Livestock Auction took the position at the trial and contends on appeal that because the deed executed December 11 was not delivered to the purchaser until a week later, title to the 6.67 acres was not conveyed until after December 12, the date of the taking.

The deed on its face shows that it was received by the county clerk for recording December 19 and was recorded December 21. The president of Capitol Livestock Auction testified that delivery of the deed was intentionally delayed until personal checks on out of town banks had cleared following the closing held December 11.

Appellants argue that equitable title to the 6.67 acres passed to the purchaser with the making of the contract of sale on November 1 because the terms of the contract eventually were carried out by the parties and the purchaser went into possession by November 5.

Under terms of the contract, the purchaser operated an auction business on the premises beginning with the taking of possession, but proceeds were held in escrow pending the making and execution of the deed and payment of the consideration. The sum of $25,000, placed in escrow under the contract, was released as of December 11. At the same time the purchaser paid a cash consideration of $50,000, by check, and executed and delivered a note in the sum of $75,000, which was the balance of the total purchase price of $150,000.

It appears undisputed that Capitol Livestock Auction and the purchaser of the 6.67 acres made the contract of sale on November 1 on the basis that the taking was an accomplished fact. The award of the commissioners, as placed of record October 30, assessed 'the actual damages to * * * Capitol Livestock Auction Co., Inc., as owner and claimant of the tract of land * * * by reason of said condemnation as being the value of the fee title to said land, and improvements, Including severance damages * * *' (Emphasis added). Capitol Livestock filed its objections to the amount of the award and alleged that the award 'did not provide for adequate compensation For the severance damages to the balance of the property remaining.' (Emphasis added). The objections were filed November 6 and were served on the City of Austin on December 10, 1962.

The condemning authorities did not file objections or exceptions to the allegations of Capitol Livestock with reference to severance damages after objections to the award were filed November 6, 1962. Trial of the case began May 8, 1967, about four and one-half years later.

In the course of the trial in 1967, after Capitol Livestock had rested its case, the condemning authorities, on May 12, sought to file a trial amendment, which the court refused. The trial amendment set up the contention made on appeal that title to the remainder of the tract of land had passed prior to the date of taking, December 12, and Capitol Livestock was not entitled to severance damages. The proffered trial amendment challenged jurisdiction of the county court to adjudicate the title question concerning the 6.67 acres remaining after the taking of .8107 of an acre for highway purposes.

The same contentions had been made by the condemning authorities in a motion to suppress evidence of severance damages filed shortly before trial. The motion was overruled by the trial court before the trial stated on May 8.

The condemning authorities took possession of the land condemned for highway purposes in January, 1963, about one month following deposit of the amount of the award made by the commissioners. Actual construction of the highway widening on the Capitol Livestock tract began January 24, 1963. The project had been completed and the widened highway was in use by the public when the case was tried in May, 1967.

Whether Capitol Livestock had title to the 6.67 acres remaining after severance of .8107 of an acre for the highway is a question the trial court did not have jurisdiction to decide. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953.

In the original petition filed by the City of Austin the allegation was made that Capitol Livestock was 'the owner and claimant of the fee simple title' to .8107 of one acre of land described by metes and bounds. The City further described the .8107 of an acre as '* * * being Out of and a part of that certain tract of land * * * conveyed to the Capitol Livestock Auction Co., Inc. by warranty deed dated September 1, 1956 of record * * * in the deed records of Travis County * * *' (Emphasis added). It was clear from the pleadings that the land being taken was part of a larger tract acquired by the condemnee in 1956.

The allegations in condemnor's petition conferred jurisdiction upon the county court to hear the condemnation proceedings, and after the right to condemn the property had been established, the only issue before the trial court was the amount of damages suffered by Capitol Livestock as a result of the taking. Gandy v. State, 319 S.W.2d 375 (Tex.Civ.App., Beaumont, no writ).

The commissioners found that Capitol Livestock had suffered severance damages, as well as damages for the land taken. Capitol Livestock filed objections complaining of inadequate award for severance damages, as already observed, on November 6, and caused the City of Austin to be served December 10, 1962, two days before the agreed date of taking, December 12.

It is settled that the City of Austin had a right to abandon the project before judgment was entered, or to correct the description of the land before announcing for trial, provided neither such move should be attempted by the condemnor after taking possession of the property and constructing the highway on it. Leonard v. Small, 28 S .W.2d 826 (Tex.Civ.App., Fort Worth, writ ref.); Brazos River Conservation and Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842; Casey v. State, 331 S.W.2d 950 (Tex.Civ.App., Amarillo, no. writ). The Supreme Court in Brazos River Conservation and Reclamation Dist. v. Allen limited the right of the condemnor to correct errors, dismiss proceedings, or to abandon the purpose of taking land...