Houston Lighting & Power Co. v. Daily

• Decision Date: 12 January 1927
• Docket Number: (No. 8901.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 317
• Parties: HOUSTON LIGHTING & POWER CO. v. DAILY et al.
• Court: Texas Court of Appeals

Page 317

291 S.W. 317

HOUSTON LIGHTING & POWER CO. v. DAILY et al.

(No. 8901.)^*

Court of Civil Appeals of Texas. Galveston.

January 12, 1927.

Rehearing Denied February 17, 1927.

Appeal from Ft. Bend County Court; W J. McFarlane, Judge.

Condemnation proceedings by the Houston Lighting & Power Company against Sam Daily and others. Judgment awarding damages, and plaintiff appeals. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Peareson & Peareson, and D. R. Peareson, all of Richmond, for appellant.

J. V. Meek, of Houston, for appellees.

PLEASANTS, C. J.

This appeal is from a judgment of the court below for damages, rendered in a condemnation proceeding brought by appellant against the appellees.

Under statutory proceedings, of which no complaint is made, appellant was awarded a right of way for its electric transmission and distributing lines across lands belonging to the appellees, Joe, Sam, and Abe Daily. The Fidelity Savings Trust Company, which held a mortgage on the land, and two tenants of the Dailys who had growing crops on portions of the land, were also parties defendant.

Appellant, being dissatisfied with the amount awarded the appellees by the commissioners of appraisement appointed by the county judge, brought the case before the county court for trial upon the question of damages. Before the trial in the court below the appellees filed a written admission of appellant's right to condemn the land, and assumed the burden of proving the value of the land taken, and the amount of the damages claimed by them, and asked the right to conduct the trial as plaintiff and to open and close the case. This request was granted.

The trial with a jury resulted in a verdict fixing the value of the land taken for the right of way at $265.30, and the damages to the remainder of appellees' land at $1,343.75. Upon the return of the verdict judgment was rendered in favor of appellant condemning the land sought by it for right of way purposes and awarding the appellees Daily the sum of $1,619.05.

The land taken by appellant for its right of way is a strip 22 feet wide and extends diagonally across two tracts of land belonging to appellees Daily near the town of Rosenberg. Each of these tracts is in shape of a parallelogram and is now being used by the owners for farming purposes. The tract nearest to the town of Rosenberg contains 270 acres and the other tract 102.78 acres. The judgment condemns the land to the use of appellant "for the purpose of constructing thereon, maintaining and using the same, a high power electrical transmission and distributing line, consisting of variable numbers of wires and all appurtenances, including towers and poles made of wood, metal, and other materials, also props and guys, and also telephone and telegraph wires, and the said right of way or easement over said above described land is hereby given and granted to plaintiffs and divested out of defendants."

No evidence of damage to the smaller tract before mentioned was adduced by plaintiffs, and the trial court instructed the jury that plaintiffs could only recover the fair market value of the land taken from that tract for the right of way. The evidence is sharply conflicting upon the issues of the value of the land taken from the two tracts, and the amount of the depreciation in value of the remainder of the 270-acre tract caused by the taking by plaintiffs of the right of way thereover, but there is sufficient evidence to sustain the findings of the jury upon both of these issues.

In submitting the issue of the value of the land condemned, the court gave the jury the following instructions:

"You are instructed that the Houston Lighting & Power Company, under the laws of the state, has the right to condemn the lands described in its petition which it seeks to condemn, and the defendants have admitted its right to condemn same; but under the laws of the state, the defendants are entitled to receive from the plaintiff the reasonably fair market value of the land actually taken by the plaintiff, which is described by metes and bounds in its petition.

"You are instructed that the market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged to sell it, and is bought by one who is under no necessity of having it; but in arriving at what would be the fair market value of the property taken by plaintiff and sought to be condemned, all of the uses to which it may be applied and defendants' desire to use it, are to be considered by you."

The court further instructed the jury as follows, in submitting the issue of damages to the 270-acre tract:

"You are instructed that the Constitution of this state provides, `That no person's property shall be damaged or destroyed or applied to public use without adequate compensation being made, unless by consent of such person.'

"When only a portion of a person's real estate is condemned, it is the duty of the jury trying the case to estimate the injuries sustained and benefits received thereby, by the owner, as to the remaining portion of such real estate, if any, whether such remaining portion is increased or diminished in value by such condemnation, and the extent of such increase or diminution, and assess the damages accordingly.

"In estimating either the injuries or benefits, as mentioned in the preceding paragraph, those injuries or benefits which the owner of such real estate sought to be condemned sustains or receives in common with the community generally, and which are not peculiar to him and connected with his ownership, use, and enjoyment of the particular parcel of land, shall be altogether excluded from such estimate. By the word `damaged' as used in this charge, is meant some injury peculiar to the particular property in question suffered by it as a result of the construction complained of, and not in general with other property in the same community; bearing in mind the foregoing instructions, and being governed by the evidence offered under the ruling of the court and using your own good common sense and judgment, you will answer the following questions."

The first question presented in appellant's brief is against the action of the trial court granting appellees' request to open and close the case as plaintiffs, on the ground that appellees' written admission of appellant's right to condemn the property was insufficient, in that it does not expressly admit that all of the statutory proceedings requisite to the condemnation of the property had been complied with by appellant. The admission is in the following language:

"Plaintiff herein has the right to exercise the power of eminent domain in condemning the property owned by these defendants and described in their application for condemnation and admit plaintiff's right to condemn the property sought to be condemned in this proceeding and that the plaintiffs have gone into possession in the manner provided by law."

This admission is not subject to the objection made by appellant. It is not merely an admission that appellant has the power of eminent domain, but expressly admits that plaintiff had taken possession in the manner provided by law and was entitled to a judgment of condemnation in this suit. Such admission necessarily excludes any question of the regularity of the condemnation proceedings prior to the time the admission was presented, and was clearly sufficient to entitle appellees to conduct the trial as plaintiffs and open and close the case.

Under several succeeding propositions appellant assails the charge of the court before set out submitting the issue of the value of the land taken by appellant on the grounds that, the cause having been submitted upon special issues, "there was no necessity for the court to explain to the jury the rights of the defendant, nor the effect of the finding of the jury on the special issues. The jury should not have been informed as to whom the finding would benefit," and the charge does not submit the proper definition of market value, "because the charge does not explain what is meant by necessity, because the charge does not instruct the jury that the market price means the fair price of the property appropriated which would obtain between a prudent person who wants to purchase and one who wants to sell, but neither of whom is under any necessity to purchase or sell under conditions existing at time of entry, and because the value is not limited to the time when possession of the property was taken."

While it was unnecessary for the court to inform the jury that the appellant was entitled to condemn appellees' land, but that under the law appellees were entitled to receive from appellant the reasonably fair value of the land taken by it, such statements in the charge could not possibly have influenced the jury in determining the issue of the value of the land taken. No juror possessing an intelligence above that of a half-wit, and we must assume that no member of this jury was so afflicted, could have failed to have known and understood from the pleadings in the case and the obvious nature and purpose of the proceedings that if appellant was given the land, the value of the land as found by the jury would go to the appellees, and therefore the charge gave the jury no information not already necessarily possessed by them as to who would receive the benefit of the value of the property. The rules for determining the value of the property are correctly stated in the charge, and appellant's objections to the charge in this respect cannot be sustained.

Appellant next assails the first paragraph of the charge before set out, submitting the issue of the amount of damage to the remainder of the 270-acre tract caused by the right of way thereon, on the following ground:

"If defendants' admission as to plaintiff's cause of action was effective there was no issue before the jury except as to the value...