Southwestern Gas & Electric Co. v. Anderson, 5907.

• Decision Date: 29 November 1948
• Docket Number: No. 5907.,5907.
• Citation: 217 S.W.2d 47
• Parties: SOUTHWESTERN GAS & ELECTRIC CO. v. ANDERSON et ux.
• Court: Texas Court of Appeals

Page 47

217 S.W.2d 47

SOUTHWESTERN GAS & ELECTRIC CO. v. ANDERSON et ux.

No. 5907.

Court of Civil Appeals of Texas. Amarillo.

November 29, 1948.

Rehearing Denied January 3, 1949.

Appeal from Harrison County Court; R. M. Nichols, Judge.

Condemnation proceeding by the Southwestern Gas & Electric Company against J. B. Anderson and wife. From an award of the condemnation commissioners, the defendants appealed to the county court. From a judgment in favor of the defendants for $2,559, the plaintiff appeals.

Judgment affirmed.

George Pendergast, of Marshall, for appellant.

Clayton W. Feild, Jr., of Marshall, for appellees.

PITTS, Chief Justice.

This was a condemnation proceeding filed by appellant, Southwestern Gas & Electric Company, a corporation, seeking to condemn an easement over and across 434 acres of land situated in Harrison County, Texas, and owned by appellees, J. B. Anderson and wife, Leola Anderson, for the purpose of constructing thereon an electric transmission line. An award of $337 was made appellees by the condemnation commissioners, from which award appellees appealed, filed their objections thereto and the case was tried de novo with the aid of a jury in the County Court.

It was agreed between the parties in the trial court that all condemnation proceedings were regular as to form, that appellant had the right of condemnation and the only issue to be determined by the trial court was the proper amount of damages to be assessed against appellant and in favor of appellees by reason of the condemnation of the easement for the purpose stated. Appellees assumed the burden of proof and opened and closed in the trial. The electric transmission line had been built at the time of the trial. In response to special issues submitted to it, the jury awarded damages in the sum of $2559 against appellant and for appellees and judgment was rendered accordingly, from which an appeal was perfected to the Sixth Supreme Judicial District of Texas and the case was transferred to this court by the Supreme Court.

Appellant predicates its appeal upon three points of error and presents them all together. Appellant complains in effect that the amount of damages awarded by the jury was excessive, not supported by the evidence and was returned as a result of corruption, prejudice or passion on the part of the jury, all of which complaints are resisted by appellees.

Appellant states that its complaints are being presented "on two separate theories, the first being that the trial court has improperly and without authority of law permitted the defendants (appellees) to recover for a 100 foot strip across their land when no strip was taken." Under the record presented to us this theory of appellant's complaints was not presented to the trial court. Rule 418, Section (b), Texas Rules of Civil Procedure, provides that appellant's points upon which the appeal is predicated must be germane to one or more assignments of error. Rule 324 provides that a motion for a new trial must be filed in the trial court in a jury case such as this as a prerequisite for appealing. Rule 374 provides that the complaints set out in a motion for a new trial shall constitute the assignments of error on appeal. It further provides that a ground for error not distinctly set forth in a motion for a new trial is waived. Appellant presented to the trial court its motion for a new trial and the same was heard and overruled. But nowhere did appellant complain to the trial court in its said motion or otherwise, insofar as the record reveals, about its first theory hereinabove presented. However, because of our liberal construction of the rules, we shall pass on appellant's complaints presented in its first theory.

In support of its complaints presented in its first theory, appellant cites the cases of Texas Electric Service Co. v. Perkins, Tex. Com.App., 23 S.W.2d 320 and Texas Electric Service Co. v. Willard, Tex.Civ.App., 26 S.W.2d 338. It will be observed that in both of the said cases the land owners pleaded that the Electric Company was seeking to take from them the right of way for an easement and thereby deprive the land owners of the use and dominion of the strip of land a 100 feet wide in each instance and the land owners contended in each case that such was the purpose of the Electric Company. It will be observed that the court in the opinion handed down in the Willard case quoted from the opinion in the Perkins case as follows :

"An examination of the charge of the court and the verdict of the jury and the judgment discloses that the jury found that the entire 100-foot zone was actually condemned and taken. This so affects the entire verdict and judgment that the case will have to stand reversed and remanded."

These cases having similar factual situations, the court in the Willard case followed the rules of law discussed at length in the Perkins case and we think both cases were properly reversed and remanded because of the issues therein joined by the parties as reflected by the quotation hereinabove given.

However, we have no such pleadings in the instant case as were presented in the Perkins and Willard cases and no such issues were here joined by the parties. In this case the pleadings upon which the judgment was based were furnished in the main by appellant and not by the land owners. In its pleadings appellant described the land, alleged appellees owned it, further alleged its desire for an easement, designated the location of the easement across the land and described the nature of the structure or the material to be used in building the transmission line across the said land. Appellant further alleged that it would necessarily have to cut and clear the timber away from the right of way for 50 feet on each side of the said line, making the total width of the right of way 100 feet across appellees' land. It further alleged that the said right of way would remain the property of appellees and that appellant sought only the right to enter upon the said land for the purpose of constructing, patrolling and maintaining its transmission line. Appellees filed no pleadings other than ten lines objecting to the award of the sum of $337 made to them by the commissioners as damages as a result of the condemnation proceedings instituted by appellant.

The trial court submitted four special issues to the jury without any objections being made to the same by either party. It first asked for the market value of the strip of land covered by the easement for the electric line described by appellant's pleadings immediately before the said line was built. It then asked in the second special issue for the market value of the said strip of land, "taking into consideration the use, if any, which defendants (appellees) may make of the said strip of land" after the easement for the electric lines had been acquired by appellant. In connection with the second special issue the trial court gave the following instructions:

"You are instructed that in connection with Question Number Two that the phrase `uses, if any, which defendants may make of the land inquired about in Question Number One' is meant any use of said land by the defendants which is not inconsistent with and does not interfere with the use of said land for the use and purposes for which the Southwestern Gas & Electric Company has acquired said easement.

"You are further instructed in connection with Question Number Two that the Southwestern Gas & Electric Company has no right to fence the whole or any part of the land covered by the right-of-way easement. But the landowners may fence along the boundaries of said strip of land or any part of it, but are not bound to do so."

The jury's answer to the first special issue was $630.50 and its answer to the second special issue was $194, a difference of $436.50.

In order to determine the incidental damages, if any, done to the remainder of appellees' said tract of land, the trial court inquired in special issues numbers 3 and...