Southwestern Bell Tel. Co. v. Ramsey, 926
Decision Date | 30 September 1976 |
Docket Number | No. 926,926 |
Citation | 542 S.W.2d 466 |
Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Robert K. RAMSEY, Appellee. |
Court | Texas Court of Appeals |
Jack C. Morgan, Morgan, Shumpert, Huff, Mosley & Co., Kaufman, for appellant.
Robert K. Ramsey, Terrell, for appellee.
This is an eminent domain proceeding. Appellant, Southwestern Bell Telephone Company, condemned an easement lying on the East side of appellee's 154-acre tract of land for the purpose of laying an underground communication cable. The tract condemned was 10 feet in width and 3,515 feet in length and covered an area of 35,152.92 square feet or .807 of an acre. The easement extends along the west side and is contiguous to State Highway 34 connecting the City of Terrell, Texas, with Interstate Highway 20 and lies within the city limits of the City of Terrell. Appellee, Robert K. Ramsey, stipulated that the telephone company had a right to condemn the easement, and that all jurisdictional requirements had been met and that the only matter in controversy was the issue of damages. Prior to trial appellee filed a Motion in Limine judicially admitting that he owned not only the 154 acres adjacent to the easement but owned a total of 320 acres adjacent and contiguous to the ten foot easement and that the land was used as a unit for grazing purposes. Appellee further stipulated that he waived damages to the remainder of the 320 acres except for a strip of land 240 feet wide abutting and adjoining the easement running along the entire length of the easement and containing 843,669 square feet or 19.36 acres. Appellee also alleged in his Motion in Limine that the market value of the 240 strip adjacent to the easement and being near Highway 34 was much higher than the over all per acre value of the remaining land on which he waived severance damages and prayed for an order prohibiting the telephone company from showing that he owned other land other than the 240 strip adjacent to the easement. The trial court granted the Motion in Limine and the cause was tried and submitted to the jury as if the entire remainder of appellee's property, after the taking of the 10-foot easement, consisted of only the 240 strip containing 843,669 square feet or 19.36 acres. In response to the special issues, 1 the jury found (1) that the market value of the 35,152.92 square feet of land taken for the easement immediately before the taking was 6cents per square foot; (2) that the market value immediately after the taking was 4cents per square foot; (3) that the market value per square foot of the remaining 843,669 square feet lying 240 feet deep adjacent to the easement immediately before the taking was 6cents per square foot; and (4) the market value immediately after the taking was 4cents per square foot. The trial court rendered judgment on the verdict for appellee in the amount of $17,576.44. After its motion for judgment non obstante veredicto and its motion for new trial had been overruled, ruled, the telephone company perfected this appeal.
We affirm.
Before discussing the points of error, we will undertake to summarize some of the pertinent facts established by the evidence. The record reveals that at the time of condemnation appellee used the 320-acre tract of land as a unit for grazing purposes. All value witnesses, including a witness called for the telephone company, testified that the highest and best use of the 10 easement condemned, as well as the adjoining 240 strip, was for commercial or industrial purposes and that the 250 feet adjoining the highway was reasonably adaptable for such purposes and that other land in the immediate vicinity had been sold and used for such purposes.
All value witnesses were interrogated with reference to a plat prepared by appellee showing the 10 easement running along the property line abutting the highway and the 240 strip adjacent thereto. A summary of their testimony, together with the verdict of the jury is as follows:
.087 Easement 19.36 acre remainder Witnesses (35,152.92 sq. ft.) (843,669 sq. ft.) ----------------------------------------------------------------------------- Before per After per Before per After per For the landowner: Square Foot Square Foot Square Foot Sq. Ft ------------------ Ferguson 31 cents 0 31 cents 26 cents Curry 31 cents 0 31 cents 26 cents Ramsey(appellee) 40 cents 1 cents 40 cents 20 cents For the Company ------------------ Tarpley 6 cents 4 1/2 cents 6 cents 6 cents ----------------------------------------------------------------------------- Verdict 6 cents 4 cents 6 cents 4 cents -----------------------------------------------------------------------------
By the first, second and fifth points, the telephone company complains of the action of the trial court in permitting appellee's expert witnesses to testify as to the market value of the 10 easement taken. Appellant objected on the ground that the 10 easement taken was not a self-sufficient economic unit and as such it had no independent value. The telephone company contends that under the holding of City of Tyler v. Brogan, 437 S.W.2d 609 (Tex.Civ.App., Tyler 1969, no writ), the exclusive method of valuing a long, narrow strip such as this was to take the average per acre value of the entire 320 acres owned by appellee and then apply such average value per acre to the 10 easement as a proportionate part of the whole.
We fail to find any authority in support of appellee's broad proposition that in all instances of a partial taking, the exclusive method for valuing the part taken must be as a part of the whole. Contrary to appellant's contention, the holding in Brogan does not stand for such proposition. The rule that the part taken may be valued as a part of the whole, and not as if it stood alone, has been imposed in some cases because ordinarily this relationship gives the part taken--particularly where it is a narrow strip--a greater value. 4A Nichols on Eminent Domain, sec. 14.231. The purpose of the rule is to protect the condemnee and assure him a just award, because otherwise the part taken would normally be useless and valueless if considered by itself. City of Tyler v. Brogan, supra. Since the foregoing rule is obviously for the condemnee's benefit, such method of valuation is optional and constitutes only one of the several methods of valuation available to the condemnee. Consequently, the landowner in the instant case was not compelled to value the easement taken as a part of the whole, but had a right to introduce testimony showing market value as if the part taken stood alone as severed land. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936).
The fact that the 10 easement taken was not economically self-sufficient is not relevant to the issue of value. The question of whether the tract taken is or is not economically self-sufficient is a matter to be considered only in determining whether or not the landowner may claim severance damages to the remainder of his land. City of Richardson v. Smith, 494 S.W.2d 933, 939 (Tex.Civ.App., Dallas 1973, writ ref'd n.r.e.); Southern Pipeline Corporation v. Deitch, 451 S.W.2d 814 (Tex.Civ.App., Corpus Christi 1970, error granted); Calvert v. City of Denton, 375 S.W.2d 522 (Tex.Civ.App., Fort Worth, writ ref'd n.r.e.). The mere fact that the 10 easement taken was not economically self-sufficient would not require it to be valued as a part of the whole. We perceive no error in the action of the court in overruling the objections or in refusing to strike the testimony valuing the easement taken as if it stood alone as severed land.
By the third point of error, the telephone company urges that the trial court erred in permitting the landowner to waive severance damages to the remainder of his 320-acre tract of land, except for the arbitrarily designated 240-foot strip adjacent to the 10 easement condemned. As we view the record, the proposition is without merit.
Ordinarily a landowner has a right to claim severance damages to the entire remainder provided it is contiguous and there is unity of use. City of Austin v. Capitol Livestock Auction Co., 434 S.W.2d 423 (Tex.Civ.App., Austin 1968), modified and aff'd 453 S.W.2d 461 (Tex.1970); City of Denton v. Hunt, 235 S.W.2d 212 (Tex.Civ.App., Fort Worth 1950, writ ref'd n.r.e.). This is not to say, however, that a landowner is compelled to claim severance damages to his entire remaining lands. In instances where a substantial portion of the remainder is suitable and adaptable to commercial or industrial use, or some other specific use, and the other part of the remainder is not suitable or adaptable to the same purpose, the landowner is permitted to claim severance damages to only that portion thereof suitable and adaptable to specific uses. Minyard v. Texas Power & Light Co., 271 S.W.2d 957, 959 (Tex.Civ.App., Fort Worth 1954, writ ref'd n.r.e.).
Under the pleadings and the evidence, it is clear that the appellee proceeded upon the theory that the taking of the easement along the highway frontage caused him to suffer damages to the most valuable part of his land. The evidence shows that land adjacent to a busy highway is much more valuable than that situated further back from the highway especially where its best and highest use is for commercial or industrial purposes. He conceded that the taking of the easement did not interfere with the use of, or caused damages to, any of his remaining land except the 250 strip having highway frontage on State Highway 34. In view of his admission that the telephone company had a right to...
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