Greenman v. City of Fort Worth
| Decision Date | 22 November 1957 |
| Docket Number | No. 15848,15848 |
| Citation | 308 S.W.2d 553 |
| Parties | Jack N. GREENMAN, Appellant, v. CITY OF FORT WORTH, Appellee. |
| Court | Texas Court of Appeals |
McGown, Godfrey, Logan & Decker, Fort Worth, for appellant.
R. E. Rouer, Robert R. Goodrich, G. Gordon Whitman, John Gano, Earl C. Morgan, and S. G. Johndroe, Jr., Fort Worth, for appellee.
Appellee City of Fort Worth filed condemnation proceedings against appellant Jack N. Greenman to obtain land upon which to construct a sewage disposal plant. Appellant appealed from the award of special commissioners. On a trial before a jury, appellant admitted appellee's right to condemn and assumed the opening and closing of the evidence and argument on the issues as to the value of the land taken and the damage to the remainder of appellant's tract. There was a verdict and judgment for appellant for $39,339 for the 131.13 acres taken, and for $41,000 for damages to the remainder.
Appellant contends that the court erred in refusing to allow him to propound the following question to each prospective juror: "If the evidence is that the land taken has a fair market value of approximately $87,000.00, and that the damage to the property not taken is $230,000.00, will you have any objection to render a verdict for those amounts merely because of the large amounts of money involved?".
In order intelligently to exercise his peremptory challenges, a party has considerable latitude in his examination of jurors. 26 Tex.Jur., p. 644, sec. 81. Of course, the examination need not be confined to matters which might be ground for challenge for cause. Missouri, K. & T. Ry. Co. of Texas v. Rogers, Tex.Civ.App., 141 S.W. 1011. But the scope of the examination allowed is in the discretion of the court, which discretion is reviewable. Lassiter v. Bouche, Tex.Civ.App., 41 S.W.2d 88, writ refused. We are unable to say that the court's refusal to permit the question was an abuse of discretion calling for a reversal. Rule 434, Texas Rules of Civil Procedure.
Nor do we perceive error in the comments by the court during the direct examination of appellant's witness Nowlin. It appears that the witness was reprimanded by the court for laughing, and for talking while an objection to his testimony was being made. Appellant contends that the remarks of the court reflected upon the credibility of the witness, and that its harmful effect could not have been cured by an instruction to the jury. A severe reprimand of a witness by the court, in an effort to maintain dignity and decorum, is not in every case a comment on the witness' credibility, and we do not think it was so in this instance.
Other points are that the court refused to strike the testimony of appellee's witness Richey to the effect that it is necessary to obtain a permit from the State Board of Water Engineers in order to irrigate land, 'regardless of where you are irrigating or who you are,' and overruled appellant's objection to the question propounded to appellant's witness Morris: 'Are you aware of the fact that all of the water in the navigable stream within the bed and banks of the streams of the State of Texas is owned by the State of Texas, are you aware of that fact?' The witness said that he did not know the law and that he was not aware of the fact.
Before the taking, appellant's land extended to Trinity River and bordered that stream for a considerable distance. After the taking, his remaining land did not reach the river. About half of his original tract, including 89 acres not taken and 68 acres taken, is low land, and could have been irrigated with water from Trinity River. Appellant had irrigated 40 acres of the 68-acre tract, and testified that it produced $200 worth of alfalfa per acre per year, from which he made a net proft of $150 per acre per year. There was other evidence that a considerable element of the value of the low land was its adaptability for irrigation. One witness testified that the 89-acre tract was worth $300 per acre without the right to irrigate, and was worth $600 per acre with the right to irrigate.
Appellant's contention as to the testimony of Richey is that it was a conclusion of law, and an incorrect conclusion of law; that the witness was allowed to testify in effect that appellant had no right to take water from the river for irrigation purposes, but that at most he had only a privilege which might be extended or withheld at the discretion of others. And he contends that the question asked Morris as to whether he was aware of the fact that the water in Trinity River belonged to the State, although not answered, was prejudicial in that allowing the question to be asked over appellant's objection negatived the proposition that appellant had the right to use water from the river to irrigate his land.
In addition to saying that appellant 'injected' the issue of riparian rights, appellee says that it appears that appellant based his case on the theory that the highest and best use of his land was for residential development, and that therefore no prejudicial error is reflected because the use for residential development is inconsistent with the less valuable use for irrigated farming.
Appellant had the right to 'inject' the element of value flowing from his irrigation rights. He acquired the right to use water from the river for irrigation purposes when he bought the land. It is a vested right. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458; Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control & Improvement Dist. No. 1, 123 Tex. 432, 73 S.W.2d 55. Riparian rights are superior to any rights of appropriation conferred by statute. 44 Tex.Jur., p. 44, sec. 30. They constitute property, and cannot be taken from the owner by condemnation without payment of just compensation. 44 Tex.Jur., p. 47, sec. 34. Such rights are not unlimited, but they are substantial. Appellant was entitled to take water from the river as a matter of right and not as a matter of favor. The value of this property right was an material as any other element of value. And we fail to find any evidence in the record tending to show that the highest value of all of appellant's land was for esidential purposes.
There is no contention that after the taking appellant as any riparian rights. His land does not now reach the river. Richter v. Granite Mfg. Co., 107 Tex. 58, 174 S.W. 284, L.R.A.1916A, p. 504, citing Farnham on Waters, sec. 463, and Gould on Waters, sec. 148; Woody v. Durham, Tex.Civ.App., 267 S.W.id 219, writ refused. And even if all his remaining land is most valuable for residential purposes, that fact would not lessen the damage of admitting...
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