Phelps v. State

• Decision Date: 05 January 1942
• Docket Number: No. 5366.,5366.
• Citation: Phelps v. State, 157 S.W.2d 955 (Tex. App. 1942)
• Parties: PHELPS et al. v. STATE et al.
• Court: Texas Court of Appeals

157 S.W.2d 955

PHELPS et al. v. STATE et al.

No. 5366.

Court of Civil Appeals of Texas. Amarillo.

January 5, 1942.

Appeal from Donley County Court; R. Y. King, Judge.

Condemnation proceedings by the State of Texas and others against Mrs. L. E. (Jackie) Phelps and others. From a judgment for the defendant for $2,464.08, defendants appeal.

Reversed and remanded.

W. T. Link, of Clarendon, for appellants.

J. R. Porter and John C. Knorpp, both of Clarendon, for appellees.

JACKSON, Chief Justice.

The record shows that at the request of the Texas Highway Department the commissioners court of Donley County agreed to obtain land for the necessary right of way to construct an overpass on the Fort Worth and Denver City Railway Company near the north line of the city limits of the city of Clarendon. It also agreed to secure the required land for right of way purposes north from said overpass a distance of approximately two miles for the construction of State Highway No. 18 to a point where it would intersect the present paved road.

The commissioners court passed the proper resolutions. They were furnished with a correct map of the land and with complete field notes both to the land to be taken and the acreage of the tracts through which the right of way would pass. The commissioners court proceeded to the acquisition of the land by purchase from the owners where the price could be agreed upon. However, after considerable negotiations with Mrs. L. E. Phelps, individually, and as executrix of the estate of S. C. Phelps, deceased, Wash Storm as joint executor of said estate, C. C. Phelps and wife, Eve Phelps, and the Federal Land Bank Commissioner, hereafter called the owners, the parties were unable to agree on the consideration to be paid for the land taken and the amount of damages to the land traversed by the highway. The commissioners court offered the owners $1,600 for the land and for the damages, which was refused.

On November 23, 1940 the county judge, the Honorable R. Y. King, upon proper application to condemn the land, appointed three special commissioners who after qualifying notified such owners that on December 12, 1940 in the district court room in the court house in Clarendon the special commissioners would meet, consider the matters and determine the value of the land taken and assess the damages to the remaining tract traversed by the right of way.

The owners answered, a hearing was had and the value of the land taken and the damages assessed in behalf of the owners to the land not taken were adjudged to be the sum of $3,786.

The county and state filed objections to the decision of the special commissioners, appealed to the county court and alleged that the amount awarded was greatly in excess of what should be paid to said owners for the right of way and damages.

The owners answered, a trial was had before a jury and in response to special issues submitted the jury found that the owners were entitled to the aggregate amount of $2,464.08 as the value of the land taken and the damages to the acreage of the remainder of the tract. The court rendered judgment in favor of the owners for said amount from which they prosecuted this appeal.

The owners urge as error the action of the court in permitting appellees to introduce in testimony on the trial of the case, over their objections, deeds from numerous other grantors to various grantees for the purpose of showing by the recitation of the consideration therein the market value of the land in controversy. The objections urged to the...