Cluck v. Houston & T. C. R. Co.

• Decision Date: 10 February 1904
• Citation: 79 S.W. 80
• Parties: CLUCK et ux. v. HOUSTON & T. C. R. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

79 S.W. 80

CLUCK et ux. v. HOUSTON & T. C. R. CO.^*

Court of Civil Appeals of Texas.

February 10, 1904.

Appeal from District Court, Travis County; R. L. Penn, Judge.

Action by George W. Cluck and wife against the Houston & Texas Central Railroad Company. From a judgment on a directed verdict for one cent in favor of the plaintiffs, they appeal. Reversed.

John Dowell, for appellants. S. R. Fisher and Baker, Botts, Baker & Lovett, for appellee.

KEY, J.

This is the second appeal in this case. 72 S. W. 83, 6 Tex. Ct. Rep. 346. At the last trial the plaintiffs sought to recover damages upon three grounds: (1) Because the defendant had unlawfully taken and appropriated water from their spring; (2) because the defendant had unlawfully taken possession of and used a strip of land belonging to the plaintiffs 60 feet wide by 600 feet long; and (3) upon averments that the wrongs referred to were committed willfully maliciously, and oppressively the plaintiffs sought to recover exemplary damages. After hearing such testimony submitted by the plaintiffs as the court held was admissible, the court gave a peremptory instruction to the jury to find for the plaintiffs damages in the sum of one cent. Verdict and judgment were so rendered, and the plaintiffs have appealed, and present the case in this court on numerous assignments of error.

We sustain the assignments which complain of the action of the trial court in not submitting one phase of the plaintiffs' case to the jury, and in excluding the testimony of the plaintiff George W. Cluck bearing upon that subject. We have reference to the rental value of a strip of land consisting of 60 by 600 feet, and stated by the plaintiffs in their petition and by George W. Cluck in his testimony to be on the west side of the railroad. In reference to the value of the use of the strip of land the plaintiffs offered the testimony of the plaintiff G. W. Cluck to the effect that other lands in that neighborhood had been rented for the purposes of pasture and grazing, and that he himself had rented a piece for that purpose about the size of and near the strip in question; that he knew the rental value of such lands; and that the strip in question was worth about $10 per month for the purpose for which the defendant used it, and that there was no demand for it except by the defendant. The trial court excluded from the jury the statement of the witness that the land was worth about $10 per month. This court holds that the trial court committed error in so ruling. If the witness had not qualified himself to testify as to the market value, it is believed that he had shown such special knowledge of the property and its uses as to entitle him to give his opinion as to its value and the value of its use. In 12 Am. & Eng. Ency. Law (2d Ed.) 475, the rule is well stated in the following language: "The market value of anything is the highest price it will bring for any and all uses, and when property has a market value witnesses may testify thereto as to a fact known and proved, but where no such value exists the opinions of witnesses are admitted. While witnesses may not be required to be experts in the strict and severe sense of the term in order to give opinions on value, and while there is no inflexible rule defining how much a witness must know in order to be so qualified, yet it must be made to appear that he has had and utilized means for forming an intelligent opinion superior to those of the jurors, derived from a knowledge of the character of property in controversy." See, also, Railroad Co. v. Warren, 137 U. S. 348, 11 Sup. Ct. 96, 34 L. Ed. 681; Railroad Co. v. Donovan, 86 Tex. 378, 25 S. W. 10; Railway Co. v. Woods (Tex. Civ. App.) 31 S. W. 237; Railroad Co. v. Searight, 8 Tex. Civ. App. 593, 28 S. W. 39, and cases there cited.

Appellee's contention that the plaintiffs were not the owners of the strip of land referred to, and that it was awarded to the appellee by the former judgment rendered in this case, is not borne out by the facts. The former judgment does award...