City of Trinity v. McPhail, 10846.

• Decision Date: 13 July 1939
• Docket Number: No. 10846.,10846.
• Citation: 131 S.W.2d 803
• Parties: CITY OF TRINITY v. McPHAIL et ux.
• Court: Texas Court of Appeals

131 S.W.2d 803

CITY OF TRINITY v. McPHAIL et ux.

No. 10846.

Court of Civil Appeals of Texas. Galveston.

July 13, 1939.

Rehearing Denied September 28, 1939.

Appeal from Trinity County Court; Hon. W. Hutson, Judge.

Suit by the City of Trinity against H. L. McPhail and wife to condemn two strips of defendants' land for right of way purposes, to be used in the construction of a highway. From the judgment rendered by the county court on appeal from an award made by the commissioner, the plaintiff appeals.

Reversed and remanded.

Clegg & Clegg, of Trinity, and Dean & Humphrey, of Huntsville, for appellant.

Wiley B. Thomas, of Groveton, and Bryan, Suhr, Bering & Bell and George Eddy, all of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from a judgment of the county court of Trinity County in a condemnation suit brought by the City of Trinity, appellant, against H. L. McPhail and wife, appellees, seeking condemnation of two strips of appellees' land located in the town of Trinity, Texas, one strip on the north side of their premises, approximately 14×116 feet, or 1/27 of an acre, and a strip on the west side of appellees' premises, approximately 15×193 feet, or 1/15 of an acre, for right of way purposes, to be used in the construction of a State and Federal Highway known as Highway No. 19.

The petition of appellant contained all of the statutory averments. The County judge acted upon such petition and appointed three commissioners, who duly qualified, gave the statutory notices, held a hearing, and made their report, assessing damages in favor of appellees in the sum of $200, and taxing all costs against appellees.

The award of the commissioners was deposited with the clerk of the county court of Trinity County by appellant, City of Trinity, before taking possession of the property condemned, and before commencing the construction of said improvements.

Appellees duly filed their objections and exceptions to the award of the commissioners in the County Court of Trinity County. They thereafter amended their objections and exceptions to the award of the commissioners and trial was had, after answer filed by appellant, on appellees' second amended objections to the decision and award of the commissioners.

The case was tried before a jury, who, in answer to special issues submitted, found that the property had an intrinsic value that the value of the land taken was $750, and that the damage to the remainder of appellees' property was $1,200. Based on the answers to said special issues, the court rendered judgment for appellees in the sum of $1,950, and for appellant condemning the land for right of way purposes.

By agreement, appellees admitted that the property belonging to them sought to be condemned by appellant was subject to condemnation proceedings, and that appellant was entitled to have it condemned, and that it had condemned it and gone into possession thereof, in the manner provided by law, and that the only issue between the parties was the amount and value of the property taken, and the damage done to appellees' property adjoining that which had been condemned. On the strength of said admissions, appellees were given the right to open and conclude the trial.

Appellant assigns error in the action of the trial court in submitting special issue No. 1, which inquired whether or not the property in question had an intrinsic value at the time it was condemned, contending that the measure of damage in a condemnation suit is based upon the market value of the land taken and the difference, if any, in the market value of the remainder of the tract immediately before and immediately after the appropriation thereof, and that the court committed reversible error in submitting to the jury a special issue as to the intrinsic value of the property taken, in the absence of a finding that the property had no market value.

Appellant objected to special issue No. 1 in the court's charge which inquired of the jury as to whether said property had an intrinsic value, and to special issue No. 2 as to the intrinsic value of said property, and to special issue No. 3 as to whether appellees suffered any damage to the remainder of the property owned by them by reason of the taking of and possession thereof, and to special issue No. 4 as to the amount of damage sustained by appellees to the remainder of said property. Appellant also presented to the court its special issues Nos. 1, 2, 3, and 4, which requested the court to submit to the jury issues as to the market value of both of said strips of land, and as to whether the market value of appellees' tract of land, exclusive of the strips of land condemned, decreased immediately after the condemnation by reason of the taking of said strips of land, and as to how much, if any, the market value of appellees' land had decreased after such condemnation by reason of the taking of said two strips of land.

The authorities are uniform in this state in holding that the measure of damages in a condemnation suit, where a part of a tract of land is taken for public use, is the market value of the land actually appropriated and the difference, if any, in the market value of the remainder of the tract immediately before and immediately thereafter, taking into consideration the nature of the improvements and the use to which the land is to be put.

This rule is stated by the Commission of Appeals in the recent case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 197, rehearing denied, 126 Tex. 604, 89 S. W.2d 979. In discussing the measure of damages in a condemnation suit, the court said: "We are of the opinion that the proper rule for ascertaining the measure of damage to the remainder of a tract of land where a part only has been taken for public use is directly analogous to the rule which is applicable when there has been a permanent injury to land by reason of the construction of a public improvement, or the construction of an improvement by a private agency exercising the right of eminent domain. By this rule the damages are to be determined by ascertaining the difference between the market value of the remainder of the tract immediately before the taking and the market value of the remainder of the tract immediately after the appropriation, taking into consideration the nature of the improvement, and the use to which the land taken is to be put."

In the case of City of Rosebud v. Vitek, Tex.Civ.App., 210 S.W. 728, 729, in a condemnation suit, in which the only issue involved was the value of the land taken and damage to the remainder, the court, in setting out the rule of damage in condemnation suits, says: "The true measure of damages in the instant case was the market value of the land taken and the difference, if any, in the market value of the remainder of the tract just before and just after the condemnation thereof."

In the case of Wilson v. Newton County, Tex.Civ.App., 269 S.W. 227, 229, the court in its opinion says: "If the land had been lawfully condemned, the measure of appellants' damages would have been the market cash value of the land actually taken, with such additional damages as resulted to the remainder of the land from the construction and operation of the road, from which might be deducted the value of the benefits, if any, which accrued to the remainder of the land by reason of the location, construction, and operation of the road, the resulting injuries or benefits being peculiar to and affecting only the owner of such lands, and not such resulting injuries or benefits as are common to property generally in the community."

In the case of Wolsch v. State, Tex.Civ. App., 77 S.W.2d 1062, 1063, the following rule is stated: "The general rule for measuring the damages in a condemnation proceeding when a part of a tract is taken is to allow the reasonable market value of the land actually taken, plus the diminution in value of that remaining."

The above rule is followed in the cases of Eastern Texas R. Co. v. Eddings, 30 Tex.Civ.App. 170, 70 S.W. 98; Houston Belt & Terminal R. Co. v. Wilson, Tex. Civ.App., 165 S.W. 560; Owens v. Navarro County Levy Improvement District No. 8, 115 Tex. 26, 280 S.W. 532.

It is unquestionably the rule that where the evidence is uncontradicted, or where the jury finds that the property involved has no market value, that then the intrinsic value of the property becomes the measure in determining damages in condemnation suits. However, where the measure of damages in an action is based upon market value, as in a condemnation suit, and there is evidence that the property in question has a market value, it is error for the trial court to submit to the jury an issue on the measure of damages based upon the intrinsic value of the property, without a prior determination by the jury that the property has no market value.

Appellees contend that it was not error for the trial court to refuse to submit to the jury an issue as to the market value of the property in question at the time of said condemnation, for the reason that there was no competent evidence in the record that there was a market value in Trinity for such property at that time.

J. W. Atmar, a witness for appellees, and appellee H. L. McPhail, each testified that the property in question had no market value at the time of condemnation, although on cross-examination J. W. Atmar testified as to various sales of residential property such as the property condemned, both in the year 1936 and in previous years. Witnesses for appellant J. A. Hanna, George C. Elliott, and Grady Waller, each testified that he was a...