City of Dallas v. McLemee
| Decision Date | 03 April 1964 |
| Docket Number | No. 16328,16328 |
| Citation | 378 S.W.2d 393 |
| Parties | CITY OF DALLAS, Appellant, v. G. B. McLEMEE et ux., Appellees. |
| Court | Texas Court of Appeals |
H. P. Kucera, City Atty., N. Alex Bickley, Asst. City Atty., Dallas, and W. H. Frank Barnes, Terrell, for appellant.
Earl Luna, Dallas, for appellees.
The City of Dallas appeals from the judgment of the County Court of Kaufman County awarding appellees G. B. McLemee and wife the sum $1,680 as the value of land condemned by appellant as part of the right-of-way for its pipeline from Lake Tawakoni to Dallas. The land taken is a strip 130 feet wide, comprising 4.8 acres, across the southern end of appellees' 108-acre tract. While the title taken is the fee simple, all oil, gas and other minerals, together with the right to use the surface for agricultural and grazing purposes are reserved to appellees, their heirs and assigns, subject to appellant's unlimited right of ingress and egress. The only question presented by appellant's five points of error is the sufficiency vel non of the evidence to support the jury's findings as to the value of the land taken. In our opinion the award is so excessive as to require reversal.
The only evidence of values offered by appellees was the testimony of appellee G. B. McLemee, who did not live on the farm in question but lived about a mile and a quarter from it. He did not purport to be an expert and the only effort made to qualify him to give opinion evidence was counsel's asking him if he had an opinion or whether he knew the market value of the farm, to which he replied: 'I would think so.' It was not otherwise shown that he was familiar with any land values in the vicinity. He was then asked what the value of the condemned strip was, 'considered as severed land,' to which he replied: 'I would value it myself for $500.00 an acre.' He was then asked his opinion as to the value of the remaining 103.2 acres, and he replied, 'About $250.00 an acre.' He was of course interested in the outcome of the case, and he gave no basis whatever for his conclusions.
The land in the condemned strip was not shown to be more productive, or of better quality, or better located than any of the land abutting it on both sides. McLemee testified that after installation of the pipeline he planted the right-of-way in rye grass, oats and vetch, and that the only way you could tell the difference between the pipeline strip and the land adjacent to it was the fact that there were no weeds growing on the strip; that he was getting the use of the strip but would not have to pay taxes on it.
Appellees offer nothing, either in their evidence or their brief, to explain how the condemned strip could be worth exactly twice the value of the land adjacent to it, which was the same type and quality of land and indistinguishable from it. Yet the jury saw fit to follow this amazing testimony to a large extent by awarding appellees $1,680, or $350 per acre. As said by Justice Norvell, then of the San Antonio Court of Civil Appeals, in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, err. dism.:
Our Supreme Court said, in Dallas Ry. & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380:
'It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.'
It was also held in J. B. Watkins Land & Mortgage Co. v. Campbell, 98 Tex. 372, 84 S.W. 424, 425 that 'before a witness should be allowed to state an opinion as to the value of property, his qualification to do so should be shown.'
We are impressed also by the...
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