State v. Carpenter
| Decision Date | 19 February 1936 |
| Docket Number | Motion No. 12280; No. 1911-6460. |
| Citation | 89 S.W.2d 979 |
| Parties | STATE v. CARPENTER et al. |
| Court | Texas Supreme Court |
In motion for rehearing by defendant in error, our attention is called to the fact that there was an inadvertent omission of certain words in the definition of market value. The definition should have been as follows:
You are instructed that the term "market value" is the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.
Our attention is further called to the fact that in this instance there were certain improvements upon the 8.03 acres of land which, it is stated, it was necessary for the owner to remove, and that he incurred expenses in doing so. We are called upon to say that he should be allowed a recovery of this item as a separate item of damages. It is significant to note that this item appears to have been taken care of on the former trial by being taken into consideration in connection with the depreciation of the value of the land. There was no special issue covering this item. The trial court, after charging the jury that they might take into consideration "the reasonable cost of removing and reestablishing improvements from the right of way," cautiously added, "but these matters can only be considered by you as affecting the market value of the land, if they do affect it."
It is a general rule that improvements situated upon the portion of land taken are to be considered as a part of the realty. They ordinarily have no market value separate from the land. Therefore, when such improvements are taken or destroyed their value can be reflected in the finding as to the value of the land taken, and evidence of their value is admissible for that purpose. As an alternative, however, if the improvements which are situated upon the portion of land taken are essential to the use and enjoyment of the remainder of the land, or if their replacement, by removal or reconstruction, is necessary in order to obviate depreciation in the value of the residue, the cost of removal, and/or reconstruction and/or replacement may be a proper inquiry in connection with the issue of diminished market value of the remainder. See State v. Lowrie (Tex.Civ.App.) 56 S.W.(2d) 676.
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