Delhi Gas Pipeline Co. v. Mangum
| Decision Date | 28 March 1974 |
| Docket Number | No. 734,734 |
| Citation | 507 S.W.2d 631 |
| Parties | DELHI GAS PIPELINE COMPANY, Appellant, v. Lloyd M. MANGUM et ux., Appellees. |
| Court | Texas Court of Appeals |
Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Robert F. Ruckman, Dallas, for appellant.
Wynne & Wynne, Wills Point, Elliott & Bass, Clyde Elliott, Jr., Canton, for appellees.
This appeal comes to us from an eminent domain proceeding brought by Delhi Gas Pipeline Company, appellant-condemnor, against Lloyd M. Mangum and wife, Annie Mangum, appellees, in the County Court of Van Zandt County, Texas. Appellant has condemned a gas pipeline easement across an eighty-one acre tract owned by appellees and located in Van Zandt County, Texas. The easement consists of approximately two acres of land, 50 feet wide and 1638 feet long. It runs generally north to south on the western side of the Mangum tract with approximately 20 acres of the tract to the west of the pipeline and some 60 acres to the east side of the easement. Appellees maintain a three bedroom brick home on the tract located about 300 feet east of the pipeline easement. Immediately behind their residence is a barn and a cow shed. Also a dog kennel is situated in the general vicinity just a few feet from the eastern edge of the easement line. The remainder of the tract is used primarily for cattle grazing.
The right-of-way easement houses a pipeline 12 3/4 inches in outside diameter, buried thirty-six inches under the ground. Admittedly, the gas transported through the line contains approximately 3.2 per cent hydrogen sulfide, a lethal poison. It is the dangerous nature of this line and the fear created by its presence on the land which generate the entire controversy of this appeal.
In answer to special issues, the jury found: (1) the per acre value of the property actually taken for the easement before the taking was $850.00; (2) the per acre value of the property actually taken for the easement after the taking was $100.00; (3) the per acre value of the remainder before taking was $850.00; and (4) the per acre value of the remainder after the taking was $600.00. Upon this verdict--that the two-acre easement was damaged $750.00 per acre and the 79-acre remainder was damaged $250.00 per acre, the trial court rendered judgment for appellees in the amount of $21,250.00, less deposits. The real controversy does not concern the condemned land, but rather the amount of loss in market value suffered to the remainder of the tract. Appellant contends the jury found the difference in the market value after installation of the pipeline to be too great because the trial court erroneously allowed inadmissible and inflammatory evidence to be presented during the trial. We reverse and remand for a new trial.
Appellant's first three points of error are concerned with testimony given by the appellees' witness, Robinson, a real estate expert, about a pipeline rupture just south of Edgewood, Texas, which he investigated a few days following the incident. Appellant complains that Robinson's testimony about rupture of a Pan American pipeline near Edgewood was (1) hearsay; (2) there was no evidence that the same situation existed there as the pipeline here; and (3) that such testimony was not relevant to the market value of the tract involved here.
Before Robinson testified about the Edgewood pipeline rupture, the trial court allowed the appellant to conduct a voir dire examination of him. After a number of fruitless questions, the following took place:
'Q Well, your knowledge of what took place is gained from what people told you, isn't it?
The objection was overruled and Robinson was allowed to testify that ten head of cattle, two dogs and a cat were killed by the poisonous fumes escaping from the leak. He further related that On cross-examination Robinson admitted much of his testimony was based on what the Reid boy told him.
Appellees contend the testimony of Robinson was not hearsay because it was not offered to prove the truth of the fact that a rupture had occurred, but rather, was offered in support of his opinion that the rupture had caused a decrease in the market value, and to show a fear of pipelines on the part of the buying public which diminishes the value of land. Under the circumstances presented by this record, it appears such evidence was offered for the truth of the matter asserted, or, in any event, had such effect. We do agree that depreciation of market value of property due to a fear of pipelines is an admissible element of damage provided that proper predicate has been laid. However, this by no means condones the use of hearsay testimony to relate the detailed facts of such explosions. We recognize a certain line of authority in Texas which allows an expert real estate appraiser the use of hearsay testimony to explain the basis of his opinion as to value (actually the evidence is said not to be hearsay in the true sense). State v. Oakley, 163 Tex. 463, 356 S.W.2d 909 (1962). But in these cases the only hearsay testimony which is allowed to explain an appraiser's opinion is that concerning the values in comparable property sales. The objectionable testimony of Robinson did not concern comparable property values; rather it dealt with specific details of other explosions based primarily on what others had told him and what he read in the newspapers. We see no need to enlarge the real estate appraiser's use of hearsay. Due to the nature of this hearsay testimony we feel it probably did influence the jury and resulted in the rendition of an...
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