State v. Booth
| Decision Date | 23 February 1966 |
| Docket Number | No. 5765,5765 |
| Citation | 401 S.W.2d 93 |
| Parties | The STATE of Texas Appellant, v. Olivia BOOTH et al., Appellees. . El Paso |
| Court | Texas Court of Appeals |
Waggoner Carr, Atty. Gen., Sam V. Stone, Jr., T. B. Wright, Hawthorne Phillips, Stanton Stone, Watson C. Arnold and Carroll R. Graham, Asst. Attys. Gen., Austin, for appellant.
Hill D. Hudson, Pecos, for appellees.
This is a condemnation suit brought by the State of Texas against the appellees to condemn approximately 55.30 acres plus an additional 2.70 acres of land for drainage easements out of approximately 9,350 acres owned in fee by defendants, known as the 'Booth ranch', and situated in Hudspeth County, Texas, said condemned land to be used in connection with the construction of Interstate Highway 10. On the land condemned was a fence which was removed and laid over on the remaining land and a new fence constructed by appellant and tied into appellees' existing cross-fences. Appellant having filed its petition in condemnation, special commissioners were appointed and after proper notice and hearing an award was entered in the amount of $7,000.00, to which appellant objected and the case was tried before a jury in County Court. Appellant and appellees stipulated that the only questions involved were (1) the fair market value of the property taken on November 29, 1963, and (2) the damages, if any, to the remainder. These were embodied in special issues submitted to the jury as follows:
Special Issue No. 1: The market value of appellees' strip of land condemned on November 29, 1963, considered as severed land, to which the jury found $2,900.00.
Special Issue No. 2: The market value of the remaining land, approximately 9,290 acres, immediately before the strip was taken, to which the jury answered $185,000.00
Special Issue No. 3: The market value of the remaining land immediately after the strip was taken, to which the jury answered $175,000.00
Judgment was entered against appellant, in accordance with the verdict, in the amount of $12,900.00. Motion for new trial having been overruled, this appeal was taken.
Appellant presents ten points of error. The first complains of the action of the trial court in refusing to strike the testimony of appellee-landowner Oscar Booth, relative to the damages to the remaining 9,290 acres after the strip was taken for the reason that such testimony was based on improper and non-compensable methods of evaluation and not based on market value as of the day of taking. The witness Booth testified that prior to the time of taking, the strip taken and the remaining land were being operated as a ranching unit and that immediately before November 29, 1963, the day of taking, the 'value' of that land per acre as a ranching unit was 'approximately twenty dollars'. However, he later testified that the land which fronted on the old highway before the construction of Interstate 10, that is, Old Highway 80, was worth per acre $150.00, or $8,700.00 for the strip that was actually taken. No explanation is given in the witness' testimony clarifying this difference in valuation, nor does he justify the $150.00 valuation by any testimony as to 'market value'. Clearly, there is no probative value to this testimony. Tennessee Gas Transmission Company v. Wood, 331 S.W.2d 808, 810 (Tex.Civ.App., 1960; n.w.h.):
See also Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956):
'It is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection.'
The following further answers were elicited from the witness by appellees' attorney:
'Q I believe we figured it (the strip taken) fifty-eight acres roughly. There would be then at least nine thousand two hundred and eighty five acres out of that that wasn't taken by the State?
A Yes, sir.
Q Is that correct?
A Yes, sir.
Q And you place the value on that immediately prior to this condemnation on November 29th, 1963, at twenty dollars per acre, is that correct?
A Yes, sir.
Q All right sir. I figure then the total value of the owned property within the ranching unit and operated as such prior to that time was a hundred and eighty-five thousand six hundred dollars. Is that approximately correct?
A Yes, sir.
Q Now, Mr. Booth, considering what you would have to spend to get that watering replaced how much less than that, how much would be deducted from that for that reason?
What was that figure you gave me awhile ago?
A Seven thousand nine-fourteen-ninety-eight.
Q Seven thousand-nine-fourteen-ninety-eight. Well, lets call it seven thousand-nine hundred and fourteen dollars. Is that satisfactory to you?
A Yes, sir.
Q And how much did you say that your land now, not the T & P Land but your land as a whole has depreciated in value by reason of the, of your failure, on account of this situation to be able to run sheep on there?
A Approximately twenty-two percent plus.
Q Then the value has decreased, the hundred and eighty-five thousand six hundred has decreased twenty-two percent, in your opinion, of the hundred and eighty-five thousand-six hundred?
A Yes, sir, about twenty-two and a half percent.
Q Twenty-two and a half percent. Can you multiple that out and give me the actual figures on it?
A I have forty-two thousand and sixty-six dollars but that was including the fifty-five acres that the Highway Department has taken .
Q I see. Well exclusive of that lets figure it, Mr. Booth. Figure a hundred and eighty-five thousand at six hundred--Mathematically I am very poor.
A I figure forty-one thousand-seven-sixty, if I haven't made an error.
Q Forty-one-seven-sixty? Forty-one thousand seven hundred and sixty dollars?
A Yes, sir.
Q All right, sir. And then you have got seven thousand nine hundred and fourteen to be added to that. Am I correct?
A Yes, sir.
Q You figure then a total decrease in value before the condemnation and afterwards as forty-nine thousand six-hundred and seventy-four, is that figure correct?
A Yes, sir.
Q Now, Mr. Booth, allowing and being as conservative as you can and placing your actual value, I mean your actual depreciation, in your opinion, as low as it could possibly be, what would you say was the difference between the value of the tracts of land in that ranch that you own that were not taken by the State by condemnation but By cause of it between, before November 29th, 1963, and after the condemnation?
A A little over sixty thousand dollars.
Q Mr. Booth, I am not figuring the land that they took. You had a difference in the twenty-two percent deduction figure of forty-one-thousand seven hundred and sixty?
A It would be forty-nine thousand-six-seventy-four.
Q All right. Now what do you figure, just being absolutely conservative what do you know to be the damage in your opinion?
A Around forty thousand.
Q Around forty thousand dollars?
A Yes, sir.
Q All right, sir. Mr. Booth, you have been deprived of access to all of the land which you own in Section 12 and 16 which previously fronted on Highway 80, have you not?
A Yes, sir.
Q From the south side?
A Yes, sir.
Q And there were a total of fifty-eight, whatever that point was, acres of land taken by the State. What do you estimate the value of that land that fronted on Old Highway 80 to have been worth per acre?
A A hundred and fifty dollars. It would be a total of--
Q I am just figuring fifty-eight acres for this purpose. If it is fifty-eight acres at a hundred and fifty dollars, it would be eighty-seven hundred dollars for that tract that they have actually taken, is that correct?
A Yes, sir.'
It was at that point, after completion of Mr. Booth's direct testimony, that appellant made its motion to strike the testimony of the witness, which motion was overruled by the court. Appellant's position, as expressed in its motion to strike, finds support in the Commission of Appeals adopted opinion in State v. Carpenter, 126 Tex . 604, 89 S.W.2d 194 at pages 200 and 201:
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State v. Brown
...Lynch, 221 S.W. 959 (Tex.Comm.App. Sec. A, 1920); Roberts v. State, 350 S.W.2d 388 (Tex.Civ.App., Dallas, 1961, no writ hist.); State v. Booth, 401 S.W.2d 93 (Tex.Civ.App., El Paso, 1966, no writ hist.); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936); State v. Currey, 402 S.W.2d 797......