City of Irving v. Caster, 16599
| Decision Date | 26 November 1965 |
| Docket Number | No. 16599,16599 |
| Citation | 397 S.W.2d 952 |
| Parties | CITY OF IRVING, Texas, Appellant, v. Artie Lee CASTER et al., Appellees. |
| Court | Texas Court of Appeals |
C. J. Taylor, Jr., City Atty., and John F. Boyle, Jr., Asst. City Atty., Irving, for appellant.
McKool & McKool and Bill Jones, Dallas, for appellees.
Our former opinion is withdrawn and the following substituted therefor.
The City of Irving, Texas acquired by eminent domain proceedings an easement fifteen feet wide across appellees' 24-acre tract of land for water and sewer mains and other public purposes. The jury found in response to special issues that the reasonable market value of the strip in the 'permanent' easement, considered as severed land, was: (1) immediately prior to the taking $1,362 and (2) immediately after the taking $340.50; that the value of the remainder of the land, exclusive of the strip taken, was: (3) immediately prior to the taking $142,638 and (4) immediately after the taking $140,106.50; and (5) that appellees were entitled to $100 for the use and damages for the temporary working easement during the construction of the mains. The Court rendered judgment for appellees for the following items:
Damage to easement strip $1,021.50
Damage to remainder 2,531.50
Damage for use of
temporary easement 100.00
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Total $3,653.00
Appellant complains only of that part of the judgment which awards to appellees $2,531.50 as damage to the remainder. The first and third points of error on appeal say there was no evidence to support that part of the verdict, and the second and fourth that the findings in response to Special Issues 3 and 4 were against the weight and preponderance of the evidence and 'completely out of the range of the probative testimony.'
To show support for the findings in question appellees rely on the testimony of the appellee Artie Lee Caster, the landowner, and one Otis Davenport. It is our opinion that their testimony, weighed along with the other evidence in the case, is factually insufficient to support the findings. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.
Caster testified that in this opinion the front 17 acres of his property had a value of $8,000 per acre before the taking, and that the existence of the easement would in his opinion decrease the market value of the property at least $500 per acre. However, he also testified that he was still asking $8,000 per acre for the 17 acres, that that is what he thinks it is worth, that he will not take less than that and expects to receive $8,000 per acre. He did not at any time testify that the entire remainder of his property had a market value of any certain sum of dollars, either before or after the acquisition of the easement. However, it having been stipulated that the permanent easement occupied 9,913 square feet, or .227-acre, counsel for appellees argue that by mathematical calculations based upon this testimony it is possible to interpret it as expressing an opinion that the land, exclusive of the easement strip, had a market value of from $190,000 to $207,105 before taking, and of between $178,000 of $195,000 after the taking. We do not agree with appellees, for several reasons.
First, Caster's evaluation, as he volunteered several times to make clear, does not relate to the entire tract, less the strip taken, but only to 17 acres thereof. This can hardly be said to support a jury finding which relates to the entire remainder.
Moreover, when he said that in his opinion his property had been 'damaged' $500 an acre by the easement he did not relate this figure to market value. It is no more than the type of conclusion condemned by the San Antonio Court of Civil Appeals in Tennessee Gas & Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, wr. dism., where that court, speaking...
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Silberstein v. State
...in the case at bar) the jury found that the remainder had a value greater than that found by any of the witnesses. Also see City of Irving v. Caster, 397 S.W.2d 952 (Tex.Civ.App.1965, no writ). In view of the facts before us, the jury's finding on the value of the remainder does not require......
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State v. Brown
...of its position the State cites: City of Houston v. Ready, 370 S.W.2d 210 (Tex.Civ.App., Houston, 1963, no writ hist.); City of Irving v. Caster, 397 S.W.2d 952 (Tex.Civ.App., Dallas, 1965, no writ hist.); Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Comm.App. Sec. A, 1920); ......
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...Antonio, n.w.h.); Urban Renewal Agency of City of Lubbock v. Trammel, 399 S.W.2d 852 (Tex.Civ.App., 1966, Amarillo, n.w.h.); City of Irving v. Caster, 397 S.W.2d 952 (Tex.Civ .App., Dallas, 1965, n.w.h.); Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App., 1951, San ......
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