Cravens v. City of Amarillo

• Decision Date: 27 January 1958
• Docket Number: No. 6737,6737
• Citation: 309 S.W.2d 903
• Parties: H. L. CRAVENS and Bill P. Yeager, Appellants. v. CITY OF AMARILLO, Appellee.
• Court: Texas Court of Appeals

Page 903

309 S.W.2d 903

H. L. CRAVENS and Bill P. Yeager, Appellants. v. CITY OF AMARILLO, Appellee.

No. 6737.

Court of Civil Appeals of Texas, Amarillo.

Jan. 27, 1958.

Rehearing Denied Feb. 24, 1958.

Simpson, Clayton & Fullingim, Amarillo, for appellants.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, J., Hadley Edgar, Jr., Amarillo, of counsel, for appellee.

PITTS, Chief Justice.

This appeal is from a judgment in a condemnation proceeding instituted by appellee, City of Amarillo, as condemner, against appellants, H. L. Cravens and Bill P. Yeager, owners of the land involved. The record reveals that preliminary proceedings were previously had in the trial court on August 11, 1956, concerning the necessary prerequisites for a jury trial upon on the controlling question in the case and that the parties have stipulated by agreement that appellee, City of Amarillo, had previously taken all necessary steps and procedures required by law to acquire the subject land under its powers of emine it domain for the purposes pleaded by appellee and that the land involved consists of 60.08 acres lying in the south part of Section 38, Block 2, A. B. & M. Survey, Potter County, Texas, leaving only the controlling issue of the market value of the said land in question to be determined. The case was tried to a jury on May 2, 1957, with the single issue of the market value of the said land of date June 21, 1956, being submitted without objection of any party and as a result of the jury's answer thereto the trial court rendered judgment accordingly awarding appellants the sum of $15,000 for the said land being condemned, from which judgment appellants have perfected an appeal and have presented 26 points of error contending for various reasons that they did not receive 'adequate or just compensation' for the land. A calculation will reveal that the jury found the market value of the land to be approximately $250 per acre.

Appellants grouped and briefed their first eleven points together charging error because the trial court excluded the testimony of the witness, Homer R. Robbins, to the effect that, in his opinion, the market value of the land in question was $850 per acre based upon reasons some given and others sought to be given by the witness. Appellee has challenged the manner of appellants' presentation of their first eleven points and charge that all of such points should be overruled because appellants have asked this court to examine and consider in connection with their said points all the testimony of the witness Homer R. Robbins from page 183 to page 250 in the statement of facts and have not set out 'the full substance of the rejected testimony by reference to the pages in the record' as required under the provisions of Rule 418(c), Texas Rules of Civil Procedure. We find some merit to appellee's challenge but because of our liberal practice to consider such points so long as we can determine with some degree of certainty the contents and basis of the complaint made and because appellants have pointed out in some instances the pages of the record referred to, the said points are being considered by us. We likewise find that appellee, in the alternative, has replied to appellants' said eleven points, contending that such should all be overruled because the trial court did not exclude the testimony of the witness Homer R. Robbins as charged by appellants, but, on the contrary, the trial court admitted the testimony of the said witness to the effect that, in his opinion, the value of the land in question was $850 per acre and he gave his numerous reasons for so testifying.

The evidence reveals that the said 60.08 acres of land lies adjacent to the middle part of the south boundary line of Section 38 with the said tract of land being located 7 1/2 miles east of the city limits of Amarillo, between two highways but separated from each of the highways by two leading railroads. There is evidence of probative force showing that the land is located approximately three-fourths of a mile south of U. S. Highway 66 and a mile or more north of Highway 287; that the said land was unimproved and had been farmed although was not then being farmed, and was surrounded by farms; that there was no road immediately east, west or south of the said land but there was a passable road 20 feet wide on the north side of the same but the said 'land is practically isolated from the standpoint of having an outlet'; that the said land 'is of the Pullman type soil' and has a 'surface depth of 6 to 8 inches and is a silted clay and a subsoil that reaches down 42 inches or better.'

The record reveals that the witness Homer R. Robbins testified at length for appellants with his testimony covering several pages in the statement of facts without being interrupted even by a question, in which testimony he gave a description and location of the land and his method of appraisal of the same until he began to 'assume' the existence of improvements upon the land that were not there in order to establish appraisal by his method of 'capitalization and the residual technique.' Objections were made by appellee to such testimony upon the grounds that the witness was admittedly 'assuming non-existent buildings, non-existent crops, non-existent capitalization rates on top of one presumption after another,' based upon a subdivision of rural land, in order to establish 'the highest and best use of the particular land.' The trial court sustained such objections and required the further examination of the witness to be confined strictly to question and answer form without going into 'ramifications' or giving a 'discourse type of testimony', in order that opposing counsel may have an opportunity to make specific objections when desired. The trial court directed that questions be propounded to the witness one at a time concerning his method of appraisal of the said land in which event he would be permitted to answer such questions so long as he did so 'in terms of the measure of damages.' Following the instructions of the trial court the witness Robbins testified that after his 'investigation and studies of all of the factors' he had testified about, he had reached an opinion or conclusion as to the cash market value of the said land and that in his opinion, based upon investigations made, coupled with general conditions as they existed, which he took into consideration, together with the distance to the City of Amarillo, the location of the highways and 'all the physical factors involved,' including a consideration of a comparison of the land in question with the closest type of other land, the market value of the land as of June 21, 1956, was $850 per acre.

In our opinion appellants' complaints made in Points 1 to 11, both inclusive, are not supported by the record. The witness Robbins testified in effect that as a result of his investigation and studies of all of the existing factors and in considering all of the physical factors involved, in his opinion the said market value of the land was $850 per acre on the date in question. In our opinion the witness, according to his own testimony, finally based his opinion as to the value of the land upon logical and reasonable grounds, some of which were enumerated by him and others stated in a general way. We likewise believe the trial court correctly excluded testimony relating to remote, speculative and conjectural uses that may be made of the land in an attempt to fix its market value. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200, 979. For the reasons stated appellants' Points 1 to 11, both inclusive, are all overruled.

In presenting their said first eleven points of error, appellants therein charged also that the statement of facts 'contains numerous jibes, innuendoes and indirect advantages' taken of the witness Homer R. Robbins but appellants have failed to point out to this court testimony in support of such charges and they have likewise failed to present a point or assignment of error in support of their complaints and charges here made. They contend however in effect that by reason of such attitude toward the witness their rights were prejudiced before the jury, but no point or assignment has been presented in support of such contentions. In their statement and argument in support of their first eleven points, appellants also complain about other matters foreign to the complaints made in any of the eleven points. While all of appellants' said eleven points complain about the exclusion of certain testimony of the witness Homer R. Robbins and his reasons for fixing a market value of the land in question, they further therein complain and challenge some of the testimony of the witnesses, George Turnley and Royce Gaut, without directing any point or assignment of error by reason by such complaints. In the same manner appellants complain because they were not privileged to attack the credibility of the witnesses, Turnley and Gaut, by offering the testimony of Robbins in rebuttal thereto without first raising such issues by a point or assignment of error in support of their complaints so made. In our opinion none of the charges and complaints made about such matters are supported by the record but in any event under the elementary rules of procedure in briefing such charges and complaints are waived because no points or assignment of error were presented in support of same. Stroud v Jones, Tex.Civ.App., 295 S.W.2d 491 and other authorities...