City of Ft. Worth v. Young

• Decision Date: 25 March 1916
• Docket Number: (No. 8353.)
• Citation: 185 S.W. 983
• Parties: CITY OF FT. WORTH v. YOUNG et al.
• Court: Texas Court of Appeals

185 S.W. 983

CITY OF FT. WORTH v. YOUNG et al.

(No. 8353.)

Court of Civil Appeals of Texas. Ft. Worth.

March 25, 1916.

Rehearing Denied April 22, 1916.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Suit by Mrs. Ella Young and others against the City of Ft. Worth. Judgment for plaintiff, new trial denied, and defendant appeals. Reversed and remanded for new trial.

T. A. Altman and A. B. Curtis, both of Ft. Worth, for appellant. Flournoy, Smith & Storer, of Ft. Worth, for appellees.

CONNER, C. J.

This suit was brought by Mrs. Young and others in the Sixty-Seventh district court of Tarrant county, Tex., on the 28th day of July, 1913, against the city of Ft. Worth, wherein complaint is made of damages resulting on account of the construction and completion of a large dam on the west fork of the Trinity river, which resulted in the backing up of water from said dam and overflowing plaintiff's lands. The case was tried on an amended petition filed in this cause on the 11th day of January, 1915. In said petition it was alleged that plaintiff owned about 1,200 acres of land, a large portion of which bordered on the west fork of the Trinity river, the entire tract consisting in the main of river bottom land; that the erection by the said city of its dam crossing the Trinity river a few miles below the land owned by plaintiff caused the water to back up and submerge a large portion of plaintiff's land, which in another clause of said petition was set out and described by metes and bounds. Plaintiff further alleged that the reasonable and fair market value of the land so appropriated by defendant city was, at the time of the appropriation, of a value of $100 per acre. It was further alleged and shown in said petition that the land actually submerged, and the land which the city actually sought to and had converted to its own use, consisted of 360.7 acres; that said land so appropriated was located in the Trinity river bottom, and that by reason of such appropriation on the part of said city of said bottom land, and because of the construction of the dam, and the consequent formation of a large body of water immediately adjacent and adjoining the land owned by plaintiff and not submerged, such uplands left remaining to plaintiff were damaged in the sum of $18 per acre; that said uplands consist of about 839.3 acres.

Plaintiff also alleged, and this was not controverted, that on the 7th day of February, 1914, the city of Ft. Worth, as principal, and the Southwestern Surety Insurance Company, as surety, had executed and filed in this cause their certain bond in writing wherein the said city, as principal, and said security company, as surety, promised and bound themselves to pay plaintiff in full, satisfy, and perform whatever judgment and decree might be rendered in plaintiff's favor in this cause against the city of Ft. Worth for damages for the taking or condemnation of the lands of plaintiff desired by the city for reservoir purposes and involved in this cause, including all costs of suit.

The defendant city to this petition filed a general demurrer, general denial, and special answer, alleging, among other things, that the land which had been appropriated was not of a reasonable value in excess of $30 per acre. Defendant admitted in its first amended original answer that it had appropriated and used for reservoir purposes lands belonging to plaintiff, the same being necessary for the completion of a waterworks system for said city of about 360.7 acres. Defendant admits also that the water backed up from the dam constructed by said city did overflow and submerge the bottom land owned by plaintiff, and denied that said land was worth in excess of $30 per acre, and alleged that by reason of being contiguous to said reservoir, alleged to be a magnificent body of water, said remaining lands, referred to as uplands, were not damaged, but that the value thereof had been enhanced.

To said amended answer of defendant city, plaintiff filed a reply, in which denial was made of the allegations in said answer, and in which it was again alleged that the value of the land actually taken for reservoir purposes, consisting of 360.7 acres, was of a market value of about $100 per acre, and that the remaining land not actually appropriated had been damaged in respect to its market value to the extent of $18 per acre.

The case was tried before a jury, and the cause submitted upon special issues in which the jury were directed to find the reasonable market value of 360.7 acres appropriated by the city for reservoir purposes on February 1, 1912. In answer to this question, the jury fixed the valuation at $75 per acre. Another issue was with reference to the damage to the uplands, consisting of 839.3 acres, and in reply to this question the jury answered $9 per acre.

In accordance with the verdict of the jury, and upon motion of plaintiff, judgment was rendered in favor of plaintiff against the city of Ft. Worth, as principal, and the Southwestern Surety Insurance Company, as surety, in the total sum of $39,867.88, with interest on said sum at the rate of 6 per cent. per annum from April 28, 1915, from which judgment the defendant has duly prosecuted this appeal.

The appellant first insists that the trial court committed error in overruling its motion for a new trial, in that:

"During the consideration of the verdict by the jury, certain improper and prejudicial matters which were not in evidence were communicated to the jurors, consisting of a certain petition or answer filed in an injunction suit involving the same property involved in this suit, but not being a pleading in this case, submitted to the jury as such, which document was read by a juror, W. W. Manning, and was read and discussed by other jurors; that said document was also read by a juror, J. F. Wise, and that it contained a statement to the effect that the defendant herein had not paid exceeding $75 per acre for any land that it had acquired in said reservoir site; but that, as a matter of fact, this defendant did not pay more than $50 per acre for any land that it acquired by voluntary purchase in said reservoir site; that said statement, which was probably intended to mean that this defendant had not paid more than $75 per acre for any lands that it had acquired in said reservoir site by condemnation, or arbitration, was misleading, and that the jurors thought that said statement meant that this defendant purchased lands in said reservoir site at the price of $75 per acre; that said statement was considered and discussed by said jurors before they agreed on their verdict, and at the time of said discussion at least two of the jurors favored a verdict of $50 per acre for the 360.7 acres belonging to plaintiff, taken by the defendant, and that said statement in said document did affect the verdict rendered by said jury, and caused the jury to render a verdict in excess of what would have been rendered, if they had not seen said statement; that Mr. Farmer, the foreman of the jury, made a statement in the presence of the jury which was construed by certain jurors to mean that he arrived at his verdict from personal knowledge of the value of the land in controversy, which statement this defendant alleged to have been true."

The motion was supported by the following affidavit of the Juror Wise submitted to the court with the motion:

"That he was one of the jurors in the case of Mrs. Ells Young et al. v. City of Ft. Worth, in the Sixty-Seventh district court of Tarrant county, Texas; said case being No. 35508, which was tried during the month of April, 1915; that after he had heard all the evidence and the charge of the court and the argument of counsel, and after he, with the remainder of the jury, had retired to the jury room for consideration of their verdict, from the evidence and the charge of the court he had decided firmly that he would not vote for a verdict exceeding $50 per acre for the 360.7 acres of land belonging to the plaintiffs in said cause and taken by the defendant for reservoir purposes, and that he would not vote for more than $2 per acre damages to the remaining uplands belonging to said plaintiffs; that he firmly believed from the evidence and the charge of the court that said above-mentioned amounts were all that plaintiffs were entitled to; that on the first ballot of the jury he voted for the allowance of $35 per acre for said 360.7 acres; that the jury considered their verdict all during the morning, that they were out, and that he never at any time during said morning voted for or agreed to more than $50 per acre for said 360.7 acres or more than $2 per acre damages to the remaining land; that after the jury had returned to the jury room after the noon recess on said day, Mr. Farmer, the foreman of the jury, stated to affiant that he had a way of knowing the value of river bottom land in that part of the country; that he had similar land which was on the market, and that he could get $100 per acre for his land, and said Farmer also showed affiant a typewritten statement which stated in substance that the city of Ft. Worth had paid as high as $75 per acre for land that it had bought for reservoir purposes, and that affiant believed that the statement in said written document was true, and relied on it; that there had been submitted to him no evidence as to what the city had actually paid for lands that it had acquired, and that the statement in said typewritten document caused affiant to agree to a verdict of $75 per acre for said 360.7 acres, and if it had not been for the statement in said written document, affiant would never have agreed to such verdict, and that he now believes that said verdict was excessive, and has always thought so; that affiant is about 50 years of age, had never been on a jury prior to that time, and was unacquainted with the procedure and customs of juries, had been away from his home...