Massie v. City of Floydada, 4833.

• Decision Date: 03 January 1938
• Docket Number: No. 4833.,4833.
• Citation: 112 S.W.2d 243
• Parties: MASSIE v. CITY OF FLOYDADA.
• Court: Texas Court of Appeals

112 S.W.2d 243

MASSIE v. CITY OF FLOYDADA.

No. 4833.

Court of Civil Appeals of Texas. Amarillo.

January 3, 1938.

Appeal from Floyd County Court; Tom W. Deen, Judge.

Condemnation proceeding by the City of Floydada against W. M. Massie and others to acquire land for highway purposes. From the judgment, W. M. Massie appeals.

Affirmed.

Kenneth Bain, of Floydada, and Hamilton & Hamilton, of Matador, for appellant.

Fred F. Newsome, of Floydada, and Griffin & Morehead, of Plainview, for appellee.

STOKES, Justice.

This is an appeal from a condemnation proceeding instituted by the City of Floydada in the county court under article 1109b, Vernon's Annotated Civil Statutes, against appellant, W. M. Massie, and others not necessary to mention. The tract of land sought to be condemned is in the form of a triangle, consisting of .55 of an acre formed by the junction of highway No. 28 approaching the city from the east and highway No. 207 approaching from the southwest. Upon reaching the tract sought to be condemned, highway No. 28 makes a curve to the north, and in approaching the intersection the survey for highway No. 207 takes the form of a Y, one prong curving to the right so as to make an intersection with No. 28 convenient for travelers to continue on the latter highway in an easterly direction, and the other prong proceeding directly north in order to make it convenient for travelers to proceed in a northerly direction on highway No. 28, and thus entirely inclosing the triangular tract sought to be condemned. The condemnation proceedings included the land sufficient to constitute the right of way of highway No. 207 through the city, and, in concluding to condemn the property, the city council passed an order expressing the necessity and authorizing the acquisition of the fee simple title to the triangular tract here involved. The commissioners appointed by the county judge to appraise the property awarded appellant $203.50 for the tract involved in this appeal. Appellant duly filed his objections and exceptions to the award, charging that the amount awarded him by the commissioners was wholly inadequate, attacked the action of the city council in condemning this particular tract upon the ground that it was not needed for the highway, was not contemplated for highway purposes, and would not and could not be utilized as a roadbed or right of way.

The case was tried before a jury in the county court, and all items of damage and compensation involving other lands included in the proceedings were agreed upon, the trial being confined to the value of the triangular tract involved in this appeal and the authority of the city to condemn it for highway purposes. The case was submitted to the jury upon two special issues, in answer to which the jury found, first, that the city did not act arbitrarily or unjustly in determining the question of the necessity of taking the triangular tract and, second, that the cash market value of the tract here involved was $487.50. Motion for a new trial was filed by appellant, which was overruled, and appellant has perfected his appeal to this court, presenting the same upon a number of assignments of error condensed into eight propositions.

Under his first proposition appellant contends that the condemnation of the triangular tract was wrongful because it was not required for any part of highway No. 207, and is not to be used as a part of the highway. The plats and maps contained in the record and the testimony of the witnesses show that the highway will not traverse the tract of land here sought to be condemned. The conclusion of the city authorities to condemn this particular tract seems to have been based upon the necessity of maintaining a clear and open space at the intersection of the two highways for the safety of the public traveling thereon.

Whatever may have been the object and purpose of including this tract in the condemnation, it is not shown by the record that the city authorities, in including it, acted in a capricious, arbitrary, or fraudulent manner. That specific question was submitted to the jury and resulted in a finding substantially to the effect that they were not actuated by any motive other than that which is sanctioned by the law. It was shown that appellee is a city or town of less than 5,000 inhabitants and entitled to the right of eminent domain prescribed in article 1109b, Vernon's Ann. Civ.St., whenever the governing authorities shall deem it necessary, and in concluding to condemn private property under the provisions of the article mentioned the city authorities are not confined to the actual land or property needed for the roadbed. The record shows that the purpose of appellee was to grade and pave highway No. 207, including the prong leading into highway No. 28 toward the east. After completion of the improvement the triangular tract of land necessarily will be isolated from any other lands or property owned by appellant or others in the vicinity, and its use thereby reduced to limited purposes. The evidence showed that it would be valuable as a site for a gasoline filling station, but of little value for any other purpose. It was not only the right but the duty of the governing authorities of the city to construct the highway in such manner as to eliminate as far as possible the dangers incident to modern traffic. If in performing this duty they were of the opinion that it was necessary to take this tract of land in order to accomplish that purpose, and their action in determining to do so is not shown to be arbitrary, capricious, or fraudulent, the courts are without authority to review them. No abuse of their discretion is shown in this case and there was ample evidence to form the basis of the jury's finding in that regard. In our opinion, appellant's contention under this proposition is untenable, and this assignment is overruled. McInnis v. Brown County Water Imp. Dist., Tex.Civ.App., 41 S.W.2d 741; Crary v. Port Arthur Channel & Dock Co., 92 Tex. 275, 47 S.W. 967.

Under the third and fourth propositions appellant complains of the action of the court in overruling his objection to the admission of the testimony of G. C. Tubbs concerning the market value of the triangular tract here involved. The objection is based upon the contention of appellant that the witness was not shown to be qualified to testify or give his opinion concerning the value of the property. The witness testified he was, in a general way, familiar with the market value of the property on or about the first of August when the condemnation proceedings were instituted. He said he had, to some extent, kept up with what property of the kind and character was selling for and the prices for which it was being offered for sale, and that he had an opinion as to what the market value of the property was at the time, although he had not been in the real estate business in a good while. He was then asked by counsel for appellee to state his opinion as to the market value of the tract of land without regard to highway No. 28. Appellant objected to the witness giving his answer to the question upon two...