Parrish v. State, 10541

• Decision Date: 12 February 1958
• Docket Number: No. 10541,10541
• Parties: Ben H. PARRISH et al., Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 709

310 S.W.2d 709

Ben H. PARRISH et al., Appellants, v. The STATE of Texas, Appellee.

No. 10541.

Court of Civil Appeals of Texas, Austin.

Feb. 12, 1958.

Rehearing Denied March 5, 1958.

Henry H. Brooks, Gaynor Kendall, Austin, for appellants.

Will Wilson, Atty. Gen., James H. Rogers, Asst. Atty. Gen., Robert L. Burns, Houston, of counsel, for appellee.

ARCHER, Chief Justice.

This is an eminent domain proceeding instituted in the County Court of Travis County by the State of Texas, appellee here, to take by condemnation certain property in the City of Austin belonging to defendants-appellants. The right of the State to take the property subject to its obligation to pay damages for the taking was admitted and trial to a jury was therefore limited to the sole issue of damages. Upon the special issue verdict of the jury, the State was by final judgment of the County Court awarded the land sought to be condemned; the appellants were adjudged to have and recover as their damages the sum of $33,000 which the jury found to be the cash market value of the lands on November 5, 1956.

The appeal is based on seven points assigned as error and are as follows:

'Point I. The State having elicited from its witness the prices at which the subject property and other tracts had sold as much as six years previously, and the witness having testified that in forming his opinion as to market value, he had 'adjusted' the earlier sales 'to current date'; and the witness having testified that the rate of increase used was 5% per annum, based in part on average increases he established from sales and resales of nearby properties, the trial court erred in refusing to permit appellants to elicit by cross-examination that the witness had excluded and did not take into account specific sales and resales within the area in which the witness had testified that he had collected sales data.

'Point II. Appellants' right of cross-examination of the witness Legge was abridged by refusal of the Court to allow them to elicit from him three sales of one property (adjacent to tracts whose sales prices he had introduced on direct) which reflected an average annual increase of 26.64%.

'Point III. Appellants' right of cross-examination of the witness Legge was abridged by refusal of the trial court to allow them to elicit from him that if he had included all sales and resales within a more limited area than he employed, but one more closely surrounding the subject property, the average increase would have been more than fifteen per cent, instead of the five per cent increment figure used by the witness to 'adjust' earlier sales prices of properties in the area.

'Point IV. The State having elicited from its witness Legge that the Employees' Association had purchased the property located at the northwest intersection of West 14th and Congress for $42,000 in 1953, the trial court erred in excluding rebuttal testimony by appellants' witness Watts that the same association shortly thereafter refused a bona fide offer of $66,000 for an unimproved part of the identical property.

'Point V. The trial court erred in excluding the testimony of appellants' witness Watts mentioned in Point IV, supra, in that it was clearly admissible in rebuttal of previous testimony elicited by the State from its witness Legge to the effect that the property located within the vicinity of the subject property enhanced in value at an average rate of 5% per annum.

'Point VI. The trial court erred in excluding the testimony of Austin councilman Lester Palmer, the Ralph Wolf, the Executive Director of the Building Commission, had requested deferment of adoption of a city ordinance abrogating the off-street parking requirements applicable to property back of the Capitol because it might increase property values in that Area.

'Point VII. The trial court erred in excluding evidence offered by defendants relating to rents lost by them as a direct result of taking of the property, and over and above the market value thereof, to-wit:

'(a) Testimony of appellant Parrish that the Building Commission, through its executive officer Wolf, notified appellants' tenant by letter in April of 1956, that adherence to the schedule adopted by the Commission would require surrender of the premises 'by August 15, 1956;' that as a result of such notice, the tenant moved from the premises on May 1, 1956, and the appellants consequently lost monthly rentals from May 1, 1956 to December 14, 1956.

'(b) Testimony of Wolf, Executive Director of the Commission, that such letters were sent by him pursuant to the program adopted by and under the authority of the Building Commission.'

The errors complained of are directed primarily to the failure of the Court to permit appellants to question witness Legge concerning the sale of certain properties and the use of such sales in arriving at an adjusted value of such sales, in fixing the value placed on the property involved in this suit.

The appellants having admitted that the appellee, the State, had the right to recover as set out in its petition to condemn the property for the purposes stated, and that the only question to be determined is of just compensation and the amount of damages, were granted the right to open and close the case.

Lynn C. Dure, one of the owners, testified as to his experience in buying and selling real estate and of making loans thereon, and as to the purchase of the property in 1953 for $25,000 and as to the improvements and the subsequent removal of one building, and as to the rental of the premises and other use thereof. The witness testified that he listed the property in 1954 with an agent at $75,000 and fixed a cash market value of between $68,000 and $70,000 for the property.

W. T. Caswell testified as to his qualifications and as to numerous purchases and sales of properties in Austin and fixed the market value of this property at $60,000.

Ben H. Parrish, one of the owners, testified as to the purchase of the property in 1953 for $25,000, and fixed the market value of the property on November 6, 1956 at $65,000, and gave other testimony as to the use of the property and the rentals, its location, etc.

W. T. Mobley, one of the appellants, testified as to the ownership of the subject property and as to its location and uses and fixed the market value of $65,000.

Sterling Sasser, Sr. testified concerning his dealings in real estate and insurance and that the value of property and particularly commercial property, has had a tremendous inflationary spiral, and the growth of the city had been substantial; that he was familiar with the properties in the area north of the Capitol between 13th and 16th Streets, and owned an interest in a lot in the 1600 block on North Congress, and that he made an appraisal of the property owned by appellants, detailing city improvements and best usage and fixed the market value of the property as of November 5, 1956 at $70,000.

E. G. Kingsbury testified that in his opinion, based on long experience in making investments, buying, selling and leasing rental property, the cash market value of the property on November 5, 1956 was $65,000 and detailed its location, and best usage. The witness further testified in detail concerning his knowledge of real property and the elements that go into determining the value of property.

Appearing as a witness called by the State Tom Graham testified that the market value of the Parrish property on November 5, 1956 was $32,000.

James C. Cochran fixed the value of the property at $33,500.

Forrest Pearson fixed the value of the property at $34,500.

Each of the above testified as to his qualifications as an expert.

Appellee called Harold Legge, who testified that he was a real estate appraiser but did a small amount of brokerage business and had been such for a number of years and was a member of the society of Residential Appraisers and several other similar organizations and detailed his experience and qualifications and the appraisals made in Austin, and that he was employed by the State Building Commission to make an appraisal of properties located behind the Capitol and to be acquired by the State, and was being paid a fee by the State for making appraisals.

The testimony of the witness is long and in detail as to what he did and the source from which he derived information in making the appraisals and fixed the market value in cash of the property involved in this suit as of November 6, 1956, at $31,500.

The witness described the property as to its location and zoning classification and the steps he followed in making his appraisal; that he secured from an abstractor all the sales in the area and the periphery of the neighborhood or district and inspected all of the properties to determine the scarcity factor, the use and other things such as income and rentals, talked to many of the owners and tenants. Mr. Legge testified that the most reliable data to be used as a factual basis for forming an opinion of valure are sales in recent years, and that he considered the property between Levaca Street and San Jacinto and running north from 13th Street to 19th Street as the neighborhood in which the subject property is located.

The witness testified that he took each city block and broke it down into square foot areas and then took a percentage of the property that was zoned...