Colley v. Carleton, 1324

Citation571 S.W.2d 572
Decision Date21 September 1978
Docket NumberNo. 1324,1324
PartiesRichard S. COLLEY v. Stephen Marcus CARLETON et al.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
OPINION

NYE, Chief Justice.

This is a condemnation proceeding. The County of Aransas, Texas, condemned an avigation easement 1 over a portion of the land and improvements owned by Stephen Carleton, Phillip Carleton, Marcus Carleton and Priscilla Carleton. This land was subject to a long-term lease owned by Richard S. Colley. The avigation easement was necessitated by the extension of a runway on the county owned airport in the Rockport-Fulton area. The Special Commissioners found that the measure of damage to the land was $25,504.45. They awarded the entire amount to the landowners and denied any recovery to the lessee. The lessee timely filed his objection to the commissioners' award in the district court. The case was then tried before a jury which also found for the landowners. The lessee perfected his appeal to this Court.

Prior to the beginning of the district court trial, the parties admitted that: the property in question was subject to condemnation; that the entire fee, including the interests of the landowners and the lessee, had been damaged in the amount of $25,504.45 by the taking; and that the only issue to be tried in the district court was that of apportionment, if any, of the damages between the landowners and the lessee. The County was excused from further participation in the trial. After the receipt of all of the evidence, the case was submitted to the jury upon two special issues. The jury found: 1) that the landowners were entitled to 100% Of the $25,504.45 damages caused by the taking of the avigation easement; and 2) that the lessee was entitled to 0% Of the $25,504.45 damages. The lessee, having unsuccessfully moved the trial court for a directed verdict, for a judgment non obstante veredicto, and for a new trial, has perfected his appeal to this Court. He attacks the jury's findings here on appeal on legal and factual insufficiency points of error.

The record indicates that on January 2, 1952, the appellant lessee executed a fifty-year lease encompassing the surface estate of approximately 33 acres in Aransas County and the improvements thereon which were then owned by Leon and Helen Carleton, the appellees' predecessors in title. The lease obligated the lessee to pay all ad valorem taxes and annual rent of $4,200.00 for the full term of the lease. The lessee was also obligated to erect three additional buildings, each with a minimum value of $3,500.00, within the first three years of the lease term. At the end of the lease, the land and the title to all improvements was to revert and remain in the landowners. At the time the avigation easement was taken, five residences and one storage building were located on the leased premises. Over twenty-six years of the 50-year lease remained at the time of the taking.

Throughout all of the condemnation proceedings, the appellant, as a long-term lessee, has contended that he is entitled to share in the condemnation damages to the extent that his leasehold interest has been damaged. In considering appellant's specific contentions on appeal, we shall keep in mind the general principles concerning condemnation suits of this kind.

Section 3 of article 3265, Tex.Rev.Civ.Stat.Ann. (1968), provides as follows:

"When only a portion of a tract or parcel of a person's real estate is condemned, the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner; whether the remaining portion is increased or diminished in value by reason of such condemnation, and the extent of such increase or diminution and shall assess the damages accordingly."

The term "owner", as the term is used in this section, includes a lessee for years as well as any other person who has an interest in the property. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879, 884 (1961); Houston North Shore Railway Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 793 (1936). The rules applicable to the condemnation of a fee title apply equally to the condemnation of a part of a leasehold interest. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879, 884 (1961); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. Eastland 1943, writ ref'd). Both the lessor and the lessee are entitled to share in the award according to their respective interests. It is fundamental that compensation is due the lessor for damages to his reversionary interest, if any, and to the lessee for damage to his leasehold, if any. Aronoff v. City of Dallas, 316 S.W.2d 302 (Tex.Civ.App. Texarkana 1958, writ ref'd n. r. e.); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. Eastland 1943, writ ref'd); Fort Worth & D.S.P. Ry. Co. v. Judd, 4 S.W.2d 1032 (Tex.Civ.App. Amarillo 1928, writ dism'd); 4 Nichols, Law of Eminent Domain, § 12.42(1) pp. 12-481 12-482 (1971).

In general, an appeal in a condemnation suit to the district court is a special trial de novo proceeding which determines only the issue of the condemnor's right to condemn and the amount of damages. Elliott v. Joseph, 163 Tex. 71, 351 S.W.2d 879 (1961). Where, prior to trial, the landowners admit the property in question is subject to condemnation and has been condemned, the only issue in controversy is the amount of damages. In such a case, the landowner has the burden of proof on this issue. State v. Walker, 441 S.W.2d 168, 170 (Tex.Sup.1969); State v. Jackson, 388 S.W.2d 924 (Tex.Sup.1965).

In this case, the Special Commissioners found that the damages to the entire tract, including the leasehold interest and the reversionary interest, because of the easement taken, to be $25,504.45. Prior to trial, the parties stipulated not only that the tract in question was subject to condemnation, but also that the damages as found by the Special Commissioner should stand. In view of these stipulations, the only issue remaining to be decided in the district court trial was the proper apportionment of this award between the lessee and the landowners. In this connection, the lessee has the burden to show the amount of the damages attributable to his leasehold interest, if any. Special instructions should be submitted by the trial court to describe the lessee's interest. The balance of the damages, if any, would belong to the reversionary interest of the landowners. See and compare Aronoff v. City of Dallas, 316 S.W.2d 302 (Tex.Civ.App. Texarkana 1958, writ ref'd n. r. e.); Brazos River Conservation & Reclamation Dist. v. Adkisson, 173 S.W.2d 294 (Tex.Civ.App. Eastland 1943, writ ref'd); Fort Worth & D.S.P. Ry. Co. v. Judd, 4 S.W.2d 1032 (Tex.Civ.App. Amarillo 1928, writ dism'd); 4 Nichols,...

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6 cases
  • Weingarten Realty Investors v. Albertson's, Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • September 24, 1999
    ...884 (1961); Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 90 n. 13 (Tex.App. — Houston [14th Dist.] 1997, writ denied); Colley v. Carleton, 571 S.W.2d 572, 573 (Tex.Civ. App. — Corpus Christi 1978, no writ). Thus, in the event of a taking, both the lessor and lessee for years are entit......
  • Dept. of Transp. v. M & T Ent.
    • United States
    • South Carolina Court of Appeals
    • September 12, 2008
    ...N.W.2d 536, 539 (1974) ("Proof of tenancy in the condemned premises is not necessarily proof of compensable loss."); Colley v. Carleton, 571 S.W.2d 572, 574 (Tex.App.1978) ("[T]he lessee has the burden to show the amount of the damages attributable to his leasehold interest, if any. ... The......
  • Lopez v. City Towing Associates, Inc., 04-86-00421-CV
    • United States
    • Texas Court of Appeals
    • April 20, 1988
    ...as to indicate the operation of an improper influence in determination of the amount, it will not be disturbed on appeal. Colley v. Carleton, 571 S.W.2d 572, 576 (Tex.Civ.App.--Corpus Christi 1978, no writ). Here, the record shows that Mrs. Lopez was a 49 year old housewife who recently ret......
  • Texaco Refining and Marketing, Inc. v. Crown Plaza Group, 01-91-00885-CV
    • United States
    • Texas Court of Appeals
    • December 3, 1992
    ...a right to part of the condemnation award, unless it waived that right in the lease or elsewhere. This is "fundamental" Texas law. Colley v. Carleton, 571 S.W.2d 572, 574 (Tex.Civ.App.--Corpus Christi 1978, no The only lease provision mentioning condemnation provided: Lessee's right of term......
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