Melton v. State, 151

• Decision Date: 14 October 1965
• Docket Number: No. 151,151
• Citation: 395 S.W.2d 426
• Parties: G. H. MELTON et ux., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 426

395 S.W.2d 426

G. H. MELTON et ux., Appellants, v. The STATE of Texas, Appellee.

No. 151.

Court of Civil Appeals of Texas, Tyler.

Oct. 14, 1965.

Rehearing Denied Nov. 4, 1965.

David M. Kendall, Jr., Woodruff, Hill, Bader & Kendall, Dallas for appellants.

Waggoner Carr, Atty. Gen. of Texas, Fred M. Talkington, Asst. Atty. Gen., Austin, for appellee.

DUNAGAN, Chief Justice.

This is an appeal from a judgment entered by the County Court of Hopkins County in a condemnation case.

The appellee, The State of Texes, was plaintiff in the court below, but will hereafter be referred to as the state, and appellants were defendants therein and will hereafter he referred to as defendants. Special commissioners were duly appointed and hearing held which resulted in an award of $10,000.00. Both the state and the defendants duly and timely perfected appeals from the award. Trial was had to a jury in the County Court, which resulted in a verdict and judgment of $8,890.01 for the defendants, being $1,109.99 less than the award of the commissioners.

The state brought this condemnation proceeding to condemn 7.891 acres of land out of a 45.59 acre tract of land which the defendants had purcased November 13, 1959. The date of taking in this case is November 29, 1961.

Prior to institution of this proceeding, Interstate Highway 30 had been constructed. The whole property had frontage on a service road of Interstate3 30 for 1,970 feet, and was bounded on the East by a farm to market road which dead-ended into the frontage road. The property at the time of the taking was located near but outside of the City Limits of Sulphur Springs.

Upon the 45.59 acre tract of land was situated a farm house, a dairy barn, and several out buildings. However, the portion under condemnation was entirely raw acreage. The property had no city utilities except electricity. It did have the use of a private three-fourth inch water line. These are substantially the physical facts and features of the property on the date of taking, November 29, 1961, and they are the same facts and features as of the date the defendants purchased the property, November 13, 1959, for a total sum of $15,000.00, or $329.00 per acre for the 45.59 acres and all the improvements thereon.

The property at the date of purchase and the date of taking was being used as a rural homesite and for cattle grazing, a dairy farm and dairy show lot.

The 7,891 acres taken is in irregular shaped tract, which severed the subject property, leaving a 7 plus acres remainder on the East side. The part taken had 542.6 feet of frontage on the frontage road.

There is no question raised as to the right of the state to take the property or as to the procedure followed. In fact, the parties entered into a stipulation by which it was agreed that the only questions to be resolved were the fair market value of the property taken and the damage, if any, to the remainder.

The defendants contend that the trial court erred in:

(1) Excluding from consideration by the jury evidence that the property in question was in the process of being developed as a shopping center;

(2) Refusing to allow Theron Moore to testify to steps that had been taken to develop the property as a shopping center;

(3) Excluding from the evidence a plat showing development of the property as a shopping center;

(4) Refusing to permit defendant, G. H. Melton, to testify that he purchased the property for the purpose of developing it;

(5) Refusing to permit defendant, G. H. Melton, to testify as to the plans and work that had been done in developing the property as a shopping center;

(6) Refusing to permit cross-examination of the state's witness, Froneberger, concerning her knowledge of the use being made by the defendants of the property as a shopping center.

Throughout the trial in the County Court, it was the position of the defendants that their property should be valued as commercial property rather than as farm or ranch land. It was the position of the state, on the other hand, that it had no value as commercial property.

The defendants in their beief say:

'While Defendants have here asserted 18 points of error, their position can easily be summarized by stating that it is their earnest belief that, during the trial of this case, trial court effectively prevented them from establishing the value of the property for use as a shopping center, and even kept the jury from considering it; while, at the same time, giving the State free rein to establish that the property was usable only for raising cattle or possibly as a residence. * * *'

Defendants' first witness, Theron O. Moore, testified that he was interested in the construction of a shopping center in or around Sulphur Springs, and he came to Sulphur Springs for the purpose of determining what lands were available. He made an extensive survey of the area and found that there were not too many desirable sites. He determined what, in his opinion, would be the best site for a shopping center, and that was the 45-acre tract owned by the defendants. Moore was also permitted to testify why he thought the property was feasible as a shopping center, and the type of study he had made. The witness Moore further testified that he contracted defendant, G. H. Melton, and they had discussions about development of a shopping center.

Defendant G. H. Melton testified that he purchased the property for the purpose of developing it and corroborated witness Moore's testimony as to what had already been done at the time of taking with reference to a shopping center. He testified that, in his opinion, the highest and best use for the property was commercial and, within that category, the best use would have been as a shopping center.

Defendants' next witness, David Lemmon, testified in his opinion the highest and best use of the property was commercial but that after the taking it would have no commercial use.

Defendants' witness Bailey testified that the highest and best use of the property was for commercial or residential development or both.

The state objected to witnesses Moore and Melton testifying as to proposed plans or intended uses of the land for a shopping center and the court excluded such testimony. Also, on cross-examination of Vira Froneberger, she was asked if she knew that there was a proposed shopping center on this property after Melton had purchased it. The state objected on the ground that this was going into a hypothetical proposed shopping center and the objection was sustained. The defendants contend that the trial court committed error in excluding such evidence.

We think the proffered testimony relating to plans and intended use of the property for a shopping center was wholly speculative. The defendants had done nothing toward altering the surface or subsurface of the property nor had any improvements been placed upon it pursuant to any such plans or intended uses. How the property might best be developed was not a matter for the jury's consideration. The trial court did not err in excluding it. Bruner v. State of Texas, 391 S.W.2d 149, (Tex.Civ.App.) 1965, n. w. h. at this time; Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, (Tex.Civ.App.) 1962, writ refused, n. r. e. and authorities cited.

In any event, market value in such a case should be based upon a reasonable cash value and a reasonable use for reasonable adaptability, and not upon some speculative, contemplated, use to be made of the land. Cravens v. City of Amarillo, 309 S.W.2d 903, (Tex.Civ.App.) 1958, writ dismissed and other authorities there cited. Also see: State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 979 (S.Ct); Texas Electric Service Company v. campbell, 336 S.W.2d 742, (S.Ct.) 1960; Texas Power & Light Co. v. Hill, 27 S.W.2d 842, (Tex.Civ.App.) 1930, writ dismissed.

In regard to defendants' complaint of the court's action in excluding from the evidence a plat showing development of the property as a shopping center, the record does not show that the defendants at any time offered the plat into evidence, nor in perfecting any Bill of Exception offered the plat. The excluded plat is not before. this court. The record shows the following:

'Mr. McDaniel: While the jury is not, we can handle this now or we can handle it later. We understand that you are going to offer a plat showing a subdivision drawn of the land, is that correct?

'Mr. Bader: We don't know * * *.'

Since the excluded evidence of which the defendants complain is not in the record or part of a Bill of Exceptions, or shown to have been offered in evidence at any time, thus there is nothing for the appellate court to review. American Guaranty life, Health and Accident Insurance Company v. State of Texas, 332 S.W.2d 135, (Tex.Civ.App.) 1960, n. w. h.; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155, (S.Ct.) 1945; McCarthy v. City of Amarillo, 307 S.W.2d 595, (Tex.Civ.App.) 1957, n. w. h. Defendants' Points 1 through 6 are overruled.

The defendants by their Point of Error No. 8 complain that: 'The trial court erred in refusing to instruct the jury, in its charge, that, in determining market value, the jury was entitled to consider all of the uses to which the property was reasonably adaptable, and for which it either was or would in all probability become available within the reasonable future.'

The defendants objected to the court's charge and the court's refusal to give their requested definition of market value. The court gave the following charge:

'You are instructed that th term 'market value' is the price the property will being when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.'

The defendants requested the following instruction:

'You are instructed that the term 'market value' is the price the property will bring when offered for sale by one who desires to sell, but...