State v. Carpenter

• Decision Date: 08 January 1936
• Docket Number: No. 1911-6460.,1911-6460.
• Citation: 89 S.W.2d 194
• Parties: STATE v. CARPENTER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

89 S.W.2d 194

STATE v. CARPENTER et al.^*

No. 1911-6460.

Commission of Appeals of Texas, Section A.

January 8, 1936.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Condemnation proceeding by the State against R. B. Carpenter and others. Judgment awarding damages was affirmed by the Court of Civil Appeals [55 S.W.(2d) 219], and State brings error.

Judgment of the Court of Civil Appeals and of trial court set aside, and cause remanded for new trial.

John B. McNamara and W. L. Eason, both of Waco, for the State.

Bryan & Maxwell and Stansell Bryan, all of Waco, for defendants in error.

GERMAN, Commissioner.

This was a condemnation proceeding brought by the state of Texas, herein referred to as plaintiff, against R. B. Carpenter and others, herein referred to as defendants. The state sought to condemn 8.03 acres of land for highway purposes across a tract of 240 acres owned by Carpenter and wife. In the trial court a judgment was rendered in favor of defendants for $803 as the value of the 8.03 acres taken for right of way, and for $3,477 as depreciation in the value of the balance of the farm. This judgment was affirmed by the Court of Civil Appeals. 55 S.W.(2d) 219. The questions for determination here pertain to charges of the court in submitting questions as to compensation.

By special issue No. 1 the jury was asked to determine the reasonable market value of the 8.03 acres. They answered $803. In connection with this question the jury was instructed as follows: "In connection with Special Issue No. 1, you are instructed that the market value of the 8 3/100 acres of land within the right of way, is not the market value of said land taken for right of way purposes when considered by itself alone, but is its market value as a part of the entire tract of which it forms a part."

The court inquired of the jury to ascertain whether or not the market value of the remainder of the farm had been reduced by reason of the condemnation of the 8.03 acres taken. The jury answered, "Yes." The court also submitted special issue No. 3 as follows: "What amount, in dollars and cents, do you find, from a preponderance of the evidence, that the remainder of the R. B. Carpenter farm will be reduced in market value by the condemnation of the 8 3/100 acres of land, if any?"

To this question the jury answered $3,477, and judgment was rendered in favor of the defendant for the $803 and the $3,477.

The first question for decision concerns the action of the court in giving the instruction set out above in connection with special issue No. 1. Perhaps if the value of the strip of land taken had been the only issue submitted, it would have been proper to submit the question of its value, considered as a part of the whole tract. However, it seems to us obvious that when the value of this strip was ascertained "as a part of the entire tract of which it forms a part," this necessarily included to some extent a part of the damages to the remaining portion. In submitting the issue of damages to the remainder of the tract, consideration is taken of damages caused by the severance of the part taken from the whole tract as well as of consequential damages to the remainder of the farm. From this it necessarily follows, it seems to us, that if the part taken be valued as a part of the entire tract of which it forms a part, there would be opportunity for double damages. The writer of the text in 16 Texas Jurisprudence, pages 988 and 989, seems to have recognized this. It is there stated: "When the part condemned has a special value as constituting part of the whole tract, it is immaterial—unless it be important by reason of a set-off for special benefits— whether we say that the owner is entitled to compensation for the part condemned on the basis of the higher value, or that the award should be for the value of the part condemned, as severed land, plus depreciation by reason of the severance. The latter formula seems more technically correct; and it is submitted that it must be applied where accuracy is required in order to give due effect to the statutory rule that the diminution of the residue may be offset by special benefits."

The case of Jeffery v. Railway Company, 138 Wis. 1, 119 N.W. 879, 884, by the Supreme Court of Wisconsin, is almost directly in point. In that case the court said: "Now the plaintiff was entitled to recover the fair market value of the strip taken and the damages to the other land occasioned by the taking; but, when they found in the first question the value of the strip taken considering it as a part of the plaintiff's entire tract and premises as used in his business, they necessarily found, not only the value of the strip taken, but some damage to the remaining premises. The value of the strip, considering its use in connection with the balance of the land as used in the plaintiff's business, necessarily involved the idea of damage to the remainder of the plant."

The true doctrine of just compensation is this: "Compensation is awarded not merely for the property taken, but for the taking of the property." It necessarily follows that if the part taken is valued in its relation to the whole, and the damage is allowed to the remainder because of the severance of the part taken, there is a duplication of damages.

In the case of Travis County v. Trogdon, 88 Tex. 302, 31 S.W. 358, 360, this court said:

"In Railway v. Ferris, 26 Tex. 588, decided in 1863, this court held that the constitutional provision above cited, as then in force, required payment to the owner (1) of the intrinsic value of the land taken, without reference to benefits he might derive from the improvement, and that such claim could not be offset by such benefits; and (2) of any damage occasioned to the remainder of the property, in estimating which damages the benefits to the remainder of the tract were legitimate subjects of consideration.

"After this construction of said constitutional provision, it was as above indicated, incorporated, without change, into the constitutions of 1866, 1868, and 1876; and in the case of Dulaney v. Nolan County, 85 Tex. 225, 20 S.W. 70, this court approved such construction, and applied the same to the provision of the Constitution now in force, as above quoted."

Since this decision it has become recognized as necessary in practically all cases, in arriving at the just compensation to which an owner is entitled in condemnation cases, where a part only of a tract is taken, to take into consideration the two elements, to wit, the fair market value of the part taken, or its intrinsic value in case there is no market value, and the damages occasioned to the remainder of the tract by reason of the taking and the construction of the improvement for which it is appropriated. In all cases where the element of offset on account of benefits is involved, it is necessary to ascertain the value of the portion actually taken so that compensation may be paid therefor in money. In order, therefore, to avoid the possibility of double damages, the value of the part taken should be ascertained by considering such portion alone, and not as a part of the larger tract; unless, of course the issue of damages to the remainder of the tract is not involved.

Great confusion is found in the decisions of Courts of Civil Appeals as touching the method of submitting issues and instructing juries concerning the ascertainment of the other element of compensation, designated as the damages to the remainder of the tract. The trial court in this case sought to reach the correct result in having the jury ascertain the amount that the remainder of the farm was reduced in market value by the condemnation of the 8.03 acres. There were also issues intended to elicit a finding as to what extent, if any, the market value of the farm had been increased in the way of special benefits by reason of the condemnation and the construction of the road. In connection with the issue of damages to the remainder of the land, the court instructed the jury that they could take into consideration numerous matters, such as construction of fences, the cost of construction of culverts, inconvenience arising from division of the farm, etc.

There were also instructions as to matters which the jury might consider in connection with the issue of whether or not the farm had been enhanced in value by reason of special benefits. Several of the matters mentioned in the instructions of the court had been pleaded as special items of damages, and we are of opinion that it was error for the court to single out these matters and instruct the jury that they might take them into consideration. The reason for this conclusion will clearly appear from the discussion which follows.

We are of the opinion that the proper rule for ascertaining the measure of damage to the remainder of a tract of land where a part only has been taken for public use is directly analagous to the rule which is applicable when there has been a permanent injury to land by reason of the construction of a public improvement, or the construction of an improvement by a private agency exercising the right of eminent domain. By this rule the damages are to be determined by ascertaining the difference between the market value of the remainder of the tract immediately before the taking and the market value of the remainder of the tract immediately after the appropriation, taking into consideration the nature of the improvement, and the use to which the land taken is to be put. Of course, this rule relates to the ascertainment of the damages to the property itself. There may possibly be items of special damages which may not be accurately reflected in the difference between the market value before and the market value after, but everything which affects the market value of the land itself, having due regard for past and probable future injuries, may be accurately reflected by ascertaining...