Lower Colorado River Authority v. Hughes
| Decision Date | 09 November 1938 |
| Docket Number | No. 8743.,8743. |
| Citation | 122 S.W.2d 222 |
| Parties | LOWER COLORADO RIVER AUTHORITY v. HUGHES et al. |
| Court | Texas Court of Appeals |
Appeal from Travis County Court; Geo. S. Matthews, Judge.
Condemnation proceeding by the Lower Colorado River Authority against Fritz Hughes and others. From the judgment, the plaintiff appeals.
Affirmed.
Powell, Wirtz, Rauhut & Gideon and Homer Thornberry, all of Austin, for appellant.
White, Taylor & Gardner, of Austin, for appellees.
This appeal arose out of a condemnation proceeding instituted by appellant, Lower Colorado River Authority, to condemn 320 acres of land belonging to appellees, Fritz Hughes and wife, and others alleged to have an interest therein, for use in the construction of Marshall Ford dam. The commissioners appointed awarded appellees $10,000 as their damages. Both appellant and appellees appealed from said award, appellant claiming that it was excessive and appellees claiming that it was insufficient. By a written statement filed at the beginning of the trial, appellees admitted the authority of appellant to condemn the 320 acres of land and to take possession thereof, and stated that the only question presented was the amount of damages suffered by appellees for the taking of the 320 acres and damages done to the land of appellees adjoining the 320 acres condemned; and appellees, with permission of the court, assumed the burden of proof as to the amount of damages suffered. The jury found that the actual cash value of the 320 acres taken was $11,406, and that the damages to the adjoining 60 acres of appellees was $240. Judgment was accordingly rendered for appellees for $11,646, and interest; hence this appeal.
Appellant contends that the jury finding of value as to the 320 acres taken is without support in the evidence; and in the alternative, that it is against the great weight and preponderance of the undisputed evidence. In this connection appellant also contends that the court erred in admitting in evidence, over objection, or refusing to strike out the testimony of several witnesses of appellees as to the market value of the 320 acres, because the witnesses were shown not to be qualified to testify and did not show that they possessed sufficient knowledge of the market value of the land to give an opinion thereof. Neither of these contentions is sustained.
A detailed statement of the asserted grounds of disqualification of the several witnesses to give their opinions as to the market value of the 320 acres of land need not be made. The court did not submit the question of market value to the jury, but the question of the "actual cash value" of the land. No complaint is here made of the failure to submit the question of market value, and in consequence the question of whether the evidence of appellant sufficiently showed that the property had a market value is not material. Appellees alleged and tried their case on the theory that the property had no market value, but that it had an actual, reasonable or intrinsic value; and the rule is settled that when property taken or destroyed has no market value, its actual, reasonable or intrinsic value may be shown. Gulf, C. & S. F. Ry. Co. v. Jackson, 99 Tex. 343, 89 S.W. 968; Taylor County v. Olds, Tex. Civ.App., 67 S.W.2d 1102, 1103; Ft. Worth & Denver City Ry. Co. v. Amason, Tex. Civ.App., 239 S.W. 359; Ft. Worth & Denver N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d 570; and 19 Tex.Jur. 200-204, and cases there cited. Appellees' witnesses showed that there had been no sale of river front property similar to that of appellees, either above or below it for several miles, within five years of the time in question, except one place had been partitioned, which is in nature a forced sale, and possibly another had been sold but no information was given as to it; that neither the property in question nor any similar property in the vicinity of it was for sale; and that most of the similar properties had been owned by the present occupants for a period of from 20 to 50 years. The court properly defined "actual cash value" by instructing the jury to arrive at the "actual cash value" of the 320 acres of land by taking into consideration all of the uses made of it, and all uses to which it might be adapted, except as a dam site; and that "actual cash value" meant the...
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...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......
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