State v. Brown
| Decision Date | 26 October 1967 |
| Docket Number | No. 342,342 |
| Citation | 429 S.W.2d 207 |
| Parties | STATE of Texas, Appellant, v. Russell Morton BROWN et al., Appellees. . Corpus Christi |
| Court | Texas Court of Appeals |
Crawford Martin, Atty. Gen., Woodrow Curtis, Asst. Atty. Gen., Austin, for appellant.
Roger Butler and Francis Gandy, Jr., of Butler, Schraub & Gandy, Corpus Christi, for appellees.
This appeal is from a judgment in a condemnation case in which the State of Texas, appellant, condemned for highway purpose the fee title, excepting minerals, to a 16.334 acre parcel of land out of a larger tract of 43.832 acres of land situated in Nueces County, Texas, and belonging to the condemnees, Russell Morton Brown and J. S. Johnson and wife.
The evidence shows that the parcel taken for highway purposes divided the entire tract so that the remainder was in two separate tracts containing 6.621 acres and 20.877 acres, aggregating 27.498 acres.
The jury answered three special issues substantially as follows: (1) the market value of the parcel taken considered as severed land was $40,835.00, (2) the market value of the two remaining tracts exclusive of the parcel condemned immediately prior to the taking was $68,745.00, and (3) the market value of the said two remaining tracts immediately after the taking was $59,120.70. The effect of the verdict was to award $40,835.00 for the parcel taken and $9,624.30 as damages to the remainder. The trial court rendered judgment on the verdict for condemnees in the amount of $50,459.30.
Appellant does not complain as to the award of $40,835.00 for the parcel condemned, but asserts nine points of error concerning the award of $9,624.30 for damages to the remainder. The contentions made may be summarized as follows: that the evidence is legally and factually insufficient to support the jury answer to special issue no. 3, i.e., that the value of the remainder after the taking of the parcel for highway purposes, was $59,120.70; that the trial court erred in rendering judgment for $9,624.30 based upon the jury answers to special issues 2 and 3; that such award is excessive; and, in any event, that the State is entitled to remittitur in the amount of $3,270.80.
We have concluded that appellant's points are not well taken and that the judgment of the trial court should be affirmed.
Three witnesses testified on the trial of the case. Mr. W. H. Cooper was an expert witness for the State. Mr. Bob Crow was an expert witness for the condemnees. Mr. Russell Morton Brown, one of the condemnees, was the third witness. Mr. Cooper testified that the value of the remainder was $62,400.00 before the taking and $65,900.00 afterward, resulting in an enhancement in value of $3,500.00. Mr. Crow testified that the value of the remainder was $68,745.00 before the taking and $62,391.50 afterward, resulting in a reduction in value of $6,353.50.
Appellant contends that Mr. Brown did not testify concerning the market value of the remainder of 27.498 acres before and after the taking of the 16.334 acre tract for highway purposes. Appellees say that Mr. Brown did so testify and that in particular his testimony is legally and factually sufficient to support the jury answer of $59,120.70 to special issue no. 3. Appellees further say that Mr. Brown gave testimony which would establish the value of the remainder after the taking at $52,634.00, which is considerably lower than that found by the jury. We agree with appellees' contentions in such respects.
Mr. Brown testified in substance as follows: That the entire tract of 43.852 acres had a market value before the taking of $3,000.00 per acre or a total value of $130,000.00. Using the figure of 16 acres for the parcel taken, he assigned a value of $48,000.00 to it. The jury awarded $40,835.00 for said parcel. Mr. Brown further testified that 4.877 acres out of the separate remaining tract containing 20.877 was not damaged by the taking. The value of said 4,877 acres, therefore, by calculation, remained at $14,631.00. However, Mr. Brown testified that the remaining 16 acres of said 20.877 acre tract were seriously damaged and had a value after the taking and being separated from the other remaining parcel containing 6.621 acres of $2,000.00 per acre or a total of $32,000.00. Mr. Brown further testified that the remaining tract of 6.621 acres (which he referred to as 6 acres) had been particularly damaged; that it had lost two-thirds of its value of $12,000.00; therefore, its value after the taking was $6,000.00. When the testimony of Mr. Brown is summarized it appears that in substance he assigned a total value after the taking to the remainder, made up of the two separated tracts, of $52,631.00, such figure being arrived at by adding the amounts above-referred to as follows:
The jury answer in the amount of $59,120.70 to special issue no. 3, concerning the value of the remainder after the taking, was $6,489.70 higher than that testified to by Mr. Brown and $3,270.80 lower than that testified to by the witness Crow.
Appellant's contention that Mr. Brown testified only to specific items of damage and did not relate such specific items to the market value of the remaining 27.498 acres immediately before and after the taking is not well founded.
In support of its position the State cites: City of Houston v. Ready, 370 S.W.2d 210 (); City of Irving v. Caster, 397 S.W.2d 952 (); Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Comm.App. Sec. A, 1920); Roberts v. State, 350 S.W.2d 388 (); State v. Booth, 401 S.W.2d 93 (); State v. Carpenter, 126 Tex. 604, 89...
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State v. Lackey, 16008
...acres which he regarded as being part of the "unit" and adding to that figure the value of the 160 acres (160 X $450.00). See State v. Brown, 429 S.W.2d 207, 209 (Tex.Civ.App. Corpus Christi 1967, no writ). This, of course, would have been no more than an exercise in futility, since adding ......