Nelson v. State

• Decision Date: 18 January 1961
• Docket Number: No. 10648,10648
• Citation: Nelson v. State, 342 S.W.2d 644 (Tex. Ct. App. 1961)
• Parties: C. T. NELSON et al., Appellants, v. STATE of Texas, Appellee.
• Court: Texas Civil Court of Appeals

Page 644

342 S.W.2d 644

C. T. NELSON et al., Appellants, v. STATE of Texas, Appellee.

No. 10648.

Court of Civil Appeals of Texas, Austin.

Jan. 18, 1961.

Frank L. Scofield, J. Hubert Lee, Austin, for appellants.

Will Wilson, Atty. Gen., H. Grady Chandler, Joseph G. Rollins, Asst. Attys. Gen., for appellee.

GRAY, Justice.

This condemnation case was before this Court at a prior term. We reversed the judgment of the trial court because of what we believed to be jurisdictional defects in the proceedings but we did not reach or decide points 4 and 6 which are to the effect that jury findings are contrary to the overwhelming weight and preponderance of the evidence. 324 S.W.2d 898.

The Supreme Court reversed our judgment and remanded the case to this Court for our decision of points 4 and 6. 334 S.W.2d 788.

Appellants reside on approximately 160 acres of land which adjoins Highway 81 and the State has taken approximately 7 acres of the land for highway purposes.

In answer to the three special issues submitted the jury found that: (1) the market value of the land taken was $1,820; (2) immediately before the taking the market value of appellants' land, exclusive of the strip taken, was $25,256; and (3) immediately after the taking the market value of the remainder of the tract was $41,160.

In deciding points 4 and 6 supra we must consider all of the evidence in any manner bearing on the issues of the market value of the tracts of land as inquired about in the issues supra.

The witness Legge expressed his opinion that the value of the land taken was $260 per acre, that the value of the entire tract defore the taking, exclusive of the tract taken, was $27,756 and that after the taking the value of the remainder was $31,134. In testing his qualifications to express an opinion as to the market value of the land this witness, on direct and on crossexamination, testified as to his knowledge of other land sales, compared such land to the land in question together with where the same was located. These sales ranged from $125 per acre to $331 per acre. Another witness expressed his opinion that the market value of the land taken was $750 per acre. This witness also testified as to his knowledge of and experience with land sales. Another witness testified that the value of the land taken was $6 per front foot and said this made its value $8,000. Appellant Clarence T. Nelson said the value of the land taken was $8,000. There was evidence as to the uses for which the land was suitable and adaptable including commercial uses and development; of advantages and disadvantages to business located on the remaining land because of the highway; the type of construction of the highway, the number of its lanes of traffic; the depth of the cut made for the construction of the highway, the hazards of highway traffic, the possibility of one way traffic and how the use of the improvements then on the land would be affected.

The market value of the land remaining before and after the taking as testified to by the witnesses was: before the taking $27,756, $58,398 and $65,400; after the taking $31,134, $49,925 and $50,000.

Appellants say that in answer to issue one supra the jury found the market value of the land taken was the value as testified to by the witness Legge (7 X $260). They say that this testimony cannot be the basis for the jury's finding because the witness testified that the value of the improvements (driveway, cattle guard and fence) on such land was $372 and that the least the jury could have found as the value of said land was $1,820 plus $372 or a total of $2,192. The witness said that he gave weight to the improvements and that he valued the fence but that the compensation to the owner therefor was applied to the value of the remainder of the land as damages because a purchaser would have to reconstruct it. As to the driveway and cattle guard he said he just allowed a little bit more per acre as the value of the land. He said:

'So the procedure, proper procedure in appraising farms, is to make comparisons and just adjust up or down when you are comparing your improvements, to your comprable sales, and then allow for home use value or any other amenitive value, * * *.'

The answer of the jury to issue 3 was well within the limits of the testimony as to the market value of the remainder of the tract after the taking and presents no difficulty. The answer to issue 2 fixes the value of the land, exclusive of the tract taken, immediately before the taking at $25,256. This is less than the least value testified to by the witnesses.

In its opinion above referred to the Supreme Court said:

'It is also our opinion that respondents' third and fifth points in the Court of Civil Appeals, which assert that the jury's findings are without support in the evidence, do not present reversible error.'

Point three is directed to issue I and point five is to the effect that the jury's...