Fuller v. State
| Decision Date | 16 December 1970 |
| Docket Number | No. B--2067,B--2067 |
| Citation | 461 S.W.2d 595 |
| Parties | E. T. FULLER, Jr., et al., Petitioners, v. The STATE of Texas, Respondent. |
| Court | Texas Supreme Court |
Weller, Wheelus, Green & Brocato, Anthony G. Brocato, Beaumont, for petitioner.
W. G. Walley, Jr., Beaumont, for respondent.
In this condemnation case the State has acquired a tract of land measuring 50 feet by 680.55 feet, and consisting of 0.781 acre. The only issue in the trial was the amount owed by the State to the owners, Petitioners here, as just compensation. We have considered this same tract, along with an identical tract, in another opinion, 407 S.W.2d 215 (Tex.Sup.1966). The area in question is set out in the plat below.
In the earlier case one of the issues was whether the landowners or the State was entitled to ownership of the abandoned railroad right-of-way, measuring 100 feet by 680.55 feet, which lay between the landowners' property and U.S. Highway 69. We held that the State was the owner of the western half of the right-of-way, adjacent to the highway, and that the Fullers were the recognized owners of the eastern half, adjacent to their property. In this proceeding the State has condemned that eastern half of the right-of-way. The parties have stipulated that the date of taking was August 19, 1965. The jury found, in response to the single special issue, that the property's market value on that date was $34,028.00, and the trial judge rendered judgment in that amount. The Court of Civil Appeals, at 451 S.W.2d 574, reversed and remanded, holding that the trial court erroneously excluded certain evidence of the property's market value from the jury's consideration. We affirm.
Testimony of only two witnesses was offered to prove the condemned land's market value. Williamson, who testified for the landowners, based his testimony upon transactions involving land which had highway frontage comparable to that of the condemned property along U.S. Highway 69. Williamson fixed the condemned land's value at $34,028.00, the estimate accepted by the jury. The testimony of the State's witness, Hall, was excluded. His testimony, developed in a bill of exception was based upon transactions involving land having no highway frontage. He fixed the land's value at $3275.00. The disparity of their testimony arose from the fact that, prior to the date of taking of the land here in question, the State had commenced construction under a general plan to widen Highway 69. As of the date of taking of the property condemned in this case, the State's road contractors were in the process of widening the portion of the highway along the landowners' property line so that the shoulder of the highway extended onto the fifty-feet wide strip awarded to the State in our earlier judgment. The landowners' property is being condemned for a frontage road beside that portion of the newly widened highway. The former railroad right-of-way adjacent to the tract between French Road and the landowners' property had been acquired by the State earlier, and as of the date of taking of the condemned property the State's contractors had already performed a substantial amount of work on that strip, even to the point of pouring the concrete surface of the frontage road. Williamson's testimony was based upon the assumption that the condemned property had highway frontage on the date of taking, and was therefore suited to commercial use.
The gravamen of the landowners' objection to the testimony of the State's witness was that, by failing to take into consideration the existence of the newly widened U.S. Highway 69 adjacent to the condemned property, the witness was basing his testimony upon the erroneous assumption that the landowners' property lacked highway frontage. The State argued that the land did lack highway frontage because, first, the issue of access of the Fullers' half of the right-of-way to Highway 69 was foreclosed by judgment in the earlier case and, second, because the newly-widened portion of Highway 69 had not been, on the date of taking, opened to traffic. The State urged in a motion in limine that the landowners should not be allowed to offer testimony based on the assumption that the condemned tract had highway frontage. The trial court sustained the landowners' objection to the State's proffered testimony and overruled the State's motion in limine.
In the Court of Civil Appeals, the State urged that the trial court erred in both rulings. The intermediate court held that the trial court erred in excluding Hall's testimony. We agree with that holding, but disagree with the court's reasoning. The court in effect held that the parties were estopped by our judgment in the earlier case. The particular part relied upon to sustain their estoppel theory reads:
'At the present time * * * the Fullers do not own land abutting on the highway and have no right of access thereto across the tract awarded to the State in this action.' 407 S.W.2d at 221.
The Court of Civil Appeals held that this condition was necessarily limited in time to the date of the trial court's judgment in that case (October 26, 1964). But because the newly-widened portion of Highway 69 along the condemned strip had not, on the date of taking in this case, been opened to traffic, the court held that conditions had not changed between the earlier announcement by this Court and the date of taking. Therefore, the Court reasoned, it was error to exclude Hall's testimony. The majority of the Court went on to hold, however, that it was not error to admit Williamson's testimony. The majority reasoned that 'a prospective purchaser, seeing the progress being made upon the frontage road, would have taken into consideration the fact that within a few weeks the Fuller land would be adjacent to a paved road and part of the State highway system.' 451 S.W.2d at 579.
Only the landowners have petitioned this Court to review the holding below, and their writ was granted upon a point relating to the alleged error of the court's holding that Hall's testimony was admissible. We are therefore not called upon to review the court's holding that Williamson's testimony was also admissible. Our holding regarding Hall's testimony necessarily implies, however, our opinion of the admissibility of Williamson's, and because this case will be remanded for new trial we express our opinion in some detail so that this case can be disposed of properly upon retrial.
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