Kennedy v. City of Dallas

• Decision Date: 04 April 1947
• Docket Number: No. 13764.,13764.
• Parties: KENNEDY v. CITY OF DALLAS.
• Court: Texas Court of Appeals

Page 840

201 S.W.2d 840

KENNEDY v. CITY OF DALLAS.

No. 13764.

Court of Civil Appeals of Texas. Dallas.

April 4, 1947.

Rehearing Denied May 2, 1947.

Appeal from County Court at Law No. 2, Dallas County; Jeff D. Stinson, Judge.

Condemnation proceedings by the City of Dallas against Lucille Brown Kennedy. From an adverse judgment, defendant appeals.

Judgment affirmed.

Louis Wilson, of Dallas, for appellant.

H. P. Kucera, City Atty., and A. J. Thuss, Jr., Asst. City Atty., both of Dallas, for appellee.

BOND, Chief Justice.

This is an appeal from a judgment of a County Court at Law of Dallas County establishing the value of a parcel of land severed and employed by the City of Dallas in condemnation to extend or widen Live Oak Street in said City; and for consequential damages to the remaining portion of appellant's land caused by the condemnation. Both parties to the action being dissatisfied with the condemnation commissioners' report and their award of damages to appellant, duly appealed to the County Court; and both parties having pleaded, specifically and generally, such dissatisfaction, for all intent and purposes, the appeal to the County Court at Law brought before the trial all elements of damage resulting from the condemnation— not only as to the value of the property taken, but damage to the land not taken as a result of the taking. Appellant, in addition to the plea of dissatisfaction to the award, specifically setting out in her petition the market value of the land sought to be taken and, in connection therewith, the value of the remaining portion of the land and improvements thereon, its reduced value and damage resulting thereto by reason of the segregation of that portion taken, went further and alleged a catalogue of procedural iniquities of the Board in its failure to fully understand the evidence offered which caused the disappointing award, and its failure to take into consideration certain factual matters which warranted a greater amount than the commissioners' report accorded to her. On appellee's exception challenging the pleadings of assigned iniquities of the Board as being immaterial, irrelevant and prejudicial, the trial court sustained the exceptions, which action formed the basis for appellant's points of error. We think such assignments or points of error are without merit.

Error of the Board in weighing the evidence tendered to it and in assessing damages are not assignable in pleadings on appeal to the county court in condemnation proceedings. As clearly and briefly stated in the case of Fitzgerald v. City of Dallas, Tex.Civ.App., 34 S.W.2d 682, 683: "The law designates the damages that the owner of property condemned shall have the right to recover, viz. the value of the land taken and the injury to the remaining portion caused `by reason of the condemnation of the property and its employment for the purpose for which it is to be condemned.' Under the eminent domain statute title 52, R.S.1925 (articles 3264-3271 [Vernon's Ann.Civ.St. arts. 3264-3271]), the right of the owner of property condemned thereunder to recover as compensation the value of the land taken and damages for the injury that will result to the remainder of such property belonging to such owner is absolutely provided for and definitely secured to him, and leaves only, as an issue of fact to be determined, the value of the land taken and the measure or amount of the damages sustained to that portion of the land not taken; therefore there could exist no reason for, or useful purpose to be served by, requiring the owner of property sought to be condemned to specifically allege the damages sustained, or to particularize the elements of damages produced by such condemnation proceedings. Article 3265, R.S. 1925; Rev.Stats. art. 3266, subd. 6; Choctaw O. & T. R. v. True, 35 Tex.Civ.App. 309, 80 S.W. 120; Dallas P. & S. E. R. v. Day et al., 3 Tex.Civ.App. 353, 22 S.W. 538; Wichita Falls & W. R. v. Wyrick, Tex.Civ.App., 158 S.W. 570."

And to the same effect, in Lower Colorado River Authority v. Hughes, Tex. Civ.App., 122 S.W.2d 222, 224, the court said: "The authorities hold that on an appeal in condemnation proceedings the defendant need not particularize in writing the damages claimed, nor file written pleadings, because the statute, Vernon's Ann. Civ.St. art. 3265, regulates what items of damages he may recover, and the only question on the appeal is the amount of such damages. Dallas, etc. R. Co. v. Day, 3 Tex.Civ.App. 353, 22 S.W. 538; Wichita Falls & W. R. Co. v. Wyrick, Tex.Civ. App., 158 S.W. 570; 16 Tex.Jur. 800, § 167."

Manifestly, where a party to a condemnation suit does not have to plead particular items or measure of damage, it is objectionable if he pleads improper things, consisting mainly of a catalogue of evidentiary mistakes, or iniquities, by the condemnation Board. In the instant case, when appellant filed objections to the commissioners' report as required by statute, for all intent and purposes the award of the commissioners was vacated. Gulf C. & S. F. R. v. Fort Worth & R. G. R., 86 Tex. 537, 26 S.W. 54; Susholtz v. City of Houston, Tex.Com.App., 37 S.W.2d 728; Milam County v. Akers, Tex.Civ App., 181 S.W.2d 719 (error refused); Lower Colorado River Authority v. Burton, Tex.Civ.App., 170 S.W.2d 783. Jurisdiction having been thus transferred to the County Court, the trial there was in the nature of a trial de novo. Therefore, as a matter of law, it was wholly unnecessary for the appellant to file any objection, or any pleading in the County Court where the adverse party had, within the time required by law, filed its objection or dissatisfaction to the award, thus perfecting the appeal as to both parties. So, without any pleading whatsoever, the appellant could have recovered more, or awarded less on a trial de novo before the County Court, than was awarded by the condemnation commissioners. The trial in the County Court was not confined to the proof offered before the condemnation commissioners.

In the case of Milam County v. Akers, supra, the land owner Akers did not appeal nor file objections to the commissioners' report, and on trial of the controversy in the County Court, the judge awarded a larger amount than had been awarded in the condemnation report. The court held that his failure to appeal did not prevent him, in a trial de novo based upon the other party's appeal, from recovering more than had been awarded.

Aside from the above announced rule of law, we think appellant was in no wise injured for any lack of pleadings itemizing her damages, because the record discloses that all relevant testimony tendered by her to prove the market value of the parcel of land taken and the consequential damages to the remainder of the land were fully allowed by the court and evidently weighed by the jury. Each and every item of damage recognized by the statutes and the general rules for arriving at a just compensation were presented. Texas Power & Light Co. v. Hill, Tex.Civ. App., 27 S.W.2d 842, error dismissed.

Appellant further assigns error to the form of the issues submitted, in that, the issues do not add elements of value or give proper explanation of such elements, which the jury may have considered in arriving at the ultimate issues of value, thus depriving appel...