Southern Pipe Line Corp. v. Deitch, 506

• Decision Date: 19 February 1970
• Docket Number: No. 506,506
• Citation: 451 S.W.2d 814
• Parties: SOUTHERN PIPE LINE CORPORATION, Appellant, v. Ernest R. DEITCH et ux., Appellees.
• Court: Texas Court of Appeals

Page 814

451 S.W.2d 814

SOUTHERN PIPE LINE CORPORATION, Appellant, v. Ernest R. DEITCH et ux., Appellees.

No. 506.

Court of Civil Appeals of Texas Corpus Christi.

Feb. 19, 1970.

Rehearing Denied March 19, 1970.

Prichard, Peeler & Smith, C. Edwin Prichard, Jr., J. R. Keeling, Corpus Christi, for Southern Pipe Line Corp.

Fredric Johnson, Sinton, for appellees.

OPINION

GREEN, Chief Justice.

This appeal is from a judgment in a suit wherein appellant Southern Pipe Line Corporation is condemning the surface estate of one acre of land in the southwest corner of a tract of 171 acres owned by appellees. (See sketch) The purpose of the taking is the continued use of the acre tract as a terminal pumping station and storage facility, a use to which it had been put by appellant since July 1948. The one acre had been leased to appellant by the then owner of the land on July 1, 1948 for ten years with an option to renew for an additional ten years, which option was exercised by appellant in 1958. This lease was due to expire July 1, 1968. The parties were unsuccessful in negotiating an extension, and condemnation proceedings were filed on May 22, 1968. Following the hearing before condemnation commissioners, and pending trial on appeal to the county court, appellant took all necessary steps to take said acre of land on June 21, 1968. The one acre is separated from the remainder of appellees' property by a fence, and the larger tract was being used by appellees as a stock farm. Appellees purchased the 171 acres in 1963, subject to the lease on the one acre portion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The parties stipulated that appellant had the right to condemn and that all jurisdictional requirements had been met, and that the only matters in controversy were: (1) the market value of the one acre condemned; (2) whether or not the tract taken is to be considered a part of the larger tract owned by appellees or as a separate tract; (3) if it is to be considered a part of a larger tract, the damages, if any, to the remainder of the property not taken.

The jury, in answer to special issues, found (1) that the value of the one acre at the time of the taking was $800.00; (2) that the one acre tract and the sixty acres of appellees adjoining were both reasonably adaptable to homesite use; (3) and (4) that the difference in the value of the remainder of appellees' land, exclusive of the one acre taken, immediately before and immediately after the taking was $3700.00. Appellant has appealed from the judgment based on such verdict.

Appellant's Points of Error Nos. 1 and 2 are based on its contention that the evidence showed as a matter of law that the one acre was, because of its use, a separate and distinct tract from the remainder of appellees' land, and that the court erred in overruling appellant's objections to the evidence pertaining to diminution in value of such remainder, and in submitting issues to the jury concerning such remainder. Point of Error No. 3 raises the related proposition that appellees did not produce any probative evidence that the two tracts, i.e. the one acre and the remaining 170 acres, were being used as a unit or that they were reasonably adaptable to use as a unit.

The paramount issue here involved is whether the taking of the one acre tract should be considered a whole taking, so that the compensation should be restricted to its market value, or whether the one acre should be considered as a part of the larger tract, thereby involving the possibility of a diminution in value to the remainder caused by the taking. Art. 3265, subds. 2 and 3.

In a suit to condemn a portion of an owner's land, where there is an issue raised of whether the owner is entitled to severance damages to the remainder of his property, it is the law of Texas that where the tract taken is a self-sufficient economic unit independent of the remainder of the tract, with no unity of use of the two tracts, the amount of the owner's recovery should be ascertained by considering such portion alone, and not as a part of the entire property, and neither severance damages nor benefits to the remainder of the property are to be considered, nor is evidence thereof admissible. State v. Meyer, Tex.Civ.App., Corpus Christi, 391 S.W.2d 471, affd. Tex.Sup.Ct., 403 S.W.2d 366; City of Tyler v. Brogan, Tex.Civ.App., Tyler, 437 S.W.2d 609, n.w.h. But where the land being taken is a non-sufficient economic unit and is not independent of the remainder, i.e., when there is a unity of use between the part taken and the remainder, it is to be considered as a portion of the entire property, and severance damages are permissible. Rayburn, Texas Law of Condemnation, § 135, § 163, and Pocket Supplement; Calvert v. City of Denton, Tex.Civ.App., Ft. Worth, 375 S.W.2d 522, wr. ref. n.r.e. Tracts under common ownership which are physically separated may be united by their being used as a part of a single unit of operation, or, conversely, tracts of land which are physically contiguous may be considered separated from one another for these purposes if they are put by their owners to separate and distinct uses whereby they are operated by their owners not as a unit, but separately and distinctly. Rayburn, § 160(1), p. 455; Vol. 29A C.J.S. Eminent Domain § 140, p. 589.

The City of Denton case, supra, was a suit to condemn an easement over a ten feet by seventy feet strip out of one lot. Appellants were the owners of that lot and four additional adjoining lots. The trial court limited appellants' recovery to the value of the strip condemned plus damages to the remainder of the one lot from which the easement was taken. The principal issue before the appellate court concerned the right of appellants to recover damages to the remainder of all five lots as a single tract of land, rather than to be limited to the remainder of the single lot. It was stipulated by the parties in the trial court that there were no physical divisions between the five lots; that each lot was acquired by appellants in separate transactions at separate times from different vendors, and were rendered separately for taxation; a single residence house is situated on each of four lots, occupied by separate tenants; that the fifth lot is devoted to business use by one of appellants. It was further stipulated that the highest and best use of the property would involve the use of the five lots as a single tract and that the owners have sustained damages to the remainder of the property considered as a single tract additional to the damages to the single lot.

We quote as follows from the opinion of Judge Langdon, speaking for the Court, in reversing and remanding the judgment:

'The primary question before this court and the basic one in all cases involving severance damages is what constitutes a single tract of land as distinguished from separate ones. Under the authorities the answer does not depend upon artificial boundaries between tracts as may be reflected in the owner's chain of title or as may appear upon maps or plats. It would not in our opinion depend upon whether the owner acquired the tract under consideration in one or several transactions or rendered and paid taxes on them as single tracts or as a unit. Nor in our opinion would the determination of the question necessarily depend upon the uses to which the property was being devoted at the time.

'The question of what constitutes a 'single' tract is not wholly dependent upon whether the tracts under consideration are physically contiguous. Such tracts may be separate ones if used separately. On the other hand tracts which may be physically separated from one another by railroads, highways, land or other barriers may constitute a single tract if devoted to an integrated unitary use Or if the possibility of their being so combined for a unified use in the reasonably near future is such as to affect market value.

'Texas Jurisprudence in its section under Eminent Domain states in effect that the value of land is to be confined to the actual use to which it is put by the owner only in those cases where there is an absence of any evidence showing its adaptability for another use will give it a greater value. 22 Tex.Jur.2d 274, § 173 and continuing in the same text, 'Not only the actual use made of the property, but also any use to which the property is adapted and might be put, should be taken into account in...