State v. Frost

• Decision Date: 15 April 1970
• Docket Number: No. 314,314
• Parties: STATE of Texas, Appellant, v. J. M. FROST, Jr., et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 245

456 S.W.2d 245

STATE of Texas, Appellant, v. J. M. FROST, Jr., et al., Appellees.

No. 314.

Court of Civil Appeals of Texas Houston (14th Dist.).

April 15, 1970.

Rehearing Denied June 17, 1970.

Second Rehearing Denied July 8, 1970.

Crawford C. Martin, Atty. Gen., Dudley Fowler, C. W. Pearcy, Asst. Attys. Gen., Houston, for appellant.

F. Russell Kendall, Vinson, Elkins, Searls & Connally, Houston, for appellees.

BARRON, Justice.

This is a condemnation suit resulting from the consolidation of two cases brought by the State of Texas and the County of Harris as plaintiffs to condemn the fee simple title to 31.63 acres of land out of the Frost 230.14 acre tract fronting on the East Freeway (also State Highway 73) in Houston, Texas. The purpose of the taking was the creation of an interchange between Interstate Highway 10 (formerly State Highway 73), Interstate Highway 610 and U.S. Highway 90 East. The total remaining land owned by the Frosts consisted of 198.51 acres. Damages to such remainder forms the controversy on this appeal, occasioned by the taking of the south or front 31.63 acres by plaintiffs in condemnation, which land is an irregular shaped parcel with an approximate 750 foot frontage on the westbound lane of State Highway 73 and an approximate 616 foot frontage on Oates Road, the latter road extending along the east side of the original 230.14 acre tract of defendants. By agreement the date of taking was fixed as of February 20, 1962, and the case came to trial on April 1, 1969. The State made the requisite deposits in 1962 and was entitled to and did take possession of the 31.63 acre tract. The State had the right immediately to commence construction of its roadway system on the condemned land. In the intervening years the State did build a road between the Frost remainder and the East Freeway, which is a service or frontage road near and parallel to the Freeway some 350 feet to 750 feet south of the nearest property line of appellees' remaining property.

As stated above, defendant's remainder consisted of 198.51 acres, but because of the peculiar shape of the taking it was divided into a northwest remainder of 177.82 acres and an east remainder of 20.69 acres, the latter being across the proposed U.S. 90 right-of-way, both of which after the taking front on the right-of-way for proposed U.S. Highway 90, as shown by the plat marked Exhibit 'A.'

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The cause proceeded to trial on the First Amended Original Statement or Petition for condemnation, containing the following language relative to access rights:

'That Plaintiff, in the exercise of the police power for the preservation of human life and safety, and under existing laws, has designated said highway as a Controlled Access Highway, and roads are to be built as a part of said highway whereby the right of ingress and egress to or from the remaining property of defendants abutting on said highway has not and is not to be denied as of Feb. 20, 1962.'

The trial court's judgment was entered based upon the jury verdict in answer to special issues finding the value of the 31.63 acres taken to be $303,500.00, and the value of the remainder before the taking to be $1,889,000.00, and the value of the remainder after the taking to be $1,211,500.00. It is from this judgment that the State has appealed.

The State of Texas as appellant has brought forward five points of error, the first three points dealing with alleged damages allowed for loss of access, which is allegedly a non-compensable item in a case of this kind. Appellant's first three points of error are verbatim as follows:

'POINT OF ERROR NO. ONE

'The court erred in refusing to sustain the appellant's objection to the special instructions 4 and 5 in the court's charge which special instructions constituted a comment on the weight of the evidence, and were not supported by either the pleadings or evidence, instructed the jury that the appellant was taking a greater estate in land than it prayed for, and amounted to an instruction to the jury that it must award damages to the remainder for denial of access, in a case where access was not denied.

'POINT OF ERROR NO. TWO

'The court erred and abused its discretion in refusing to permit appellant to file its second trial amendment, which would have further clarified the pleadings as to the ultimate issues and evidence in the cause, without prejudice to appellees the evidence was undisputed that the appellees' remainder was not to be denied access to existing facilities pending construction of proposed frontage roads, such refusal by the trial court to permit the state to file its trial amendment amounted to such a denial of the state's rights as was reasonably calculated to cause and probably did cause the rendition of an improper and excessive judgment.

'POINT OF ERROR NO. THREE

'The trial court erred in ruling and holding over appellant's objections that there was a denial of reasonable access to the defendants' remaining land as a matter of law, and in so charging the jury to this effect by instructions nos. 3, 4 and 5 in its charge.'

In the statement and argument under all three points of error above, it appears that appellant is complaining that the trial court erred in regarding this suit as an 'access denied' case and erroneously instructed the jury accordingly; that the evidence shows that the testimony of appellees erroneously dealt with loss of access and that such matter is noncompensable and the verdict excessive. We shall consider the above in connection with the formal points of error. Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926, 928. The alleged error was properly preserved below.

By points of error 4 and 5 appellant complains of the trial court's excluding from the jury as an admission against interest evidence of the sale by appellees shortly after the taking, of a part of appellees' remaining land for $12,500.00 per acre, because the sale price was inconsistent with appellees' claim of damages to appellees' remainder, even though the sale was made by appellees to a condemning authority with power of eminent domain, Houston Lighting & Power Company.

Appellees relied principally on the testimony of three witnesses to prove damages to their remainder of 198.51 acres after the taking by appellant of the 31.63 acre tract, George Reed, Duncan Allen and John Foster. The jury's verdict is supported by the testimony of the above witnesses who testified that damages to the remainder ranged from a total of $937,000.00 to $1,105,289.00. The State's evidence showed no damages to the remainder. The jury found damages to the remainder to be $667,500.00. However, appellant contends, and we think correctly, that loss or restriction of access to such remainder was extensively developed by the testimony of appellees' expert witnesses, and it is obvious to us that damages were arrived at to a material extent by reason of diversion of traffic resulting in the necessity of using circuitous routes, required use of frontage or service roads in lieu of direct access to the highway, limited access to the Freeway, loss of traffic passing in front of such remainder and similar matters which have clearly been held to be not compensable under the law of this State. See City of Beaumont v. Marks, 443 S.W.2d 253, (Tex.Sup.); City of Houston v. Fox, 444 S.W.2d 591, (Tex.Sup.); Pennysavers Oil Co. v. State, 334 S.W.2d 546, (Tex.Civ.App.), writ ref.; State Highway Commission v. Humphreys, 58 S.W.2d 144, (Tex.Civ.App.), writ ref.; Holbrook v. State, 355 S.W.2d 235, (Tex.Civ.App.), writ ref., n.r.e.; City of San Antonio v. Easley, 368 S.W.2d 683, (Tex.Civ.App.), writ ref., n.r.e. In City of Beaumont v. Marks, supra, it was said:

'It is well settled that abutting property owners, under proof such as presented here, have certain property rights in existing streets and highways in addition to their right in common with the general public to use them. Generally, the most important of these private rights is the access to and from the highway or street (Citing cases). This right of access has been described as an easement appurtenant to the abutting land, which includes not merely the ability of the abutting landowner to enter and leave his premises by way of the street or highway, but also the right to have the premises accessible to patrons, clients and customers.' (Citing authorities).

In the same case 443 S.W.2d at pp. 256, 257 and 260, the Supreme Court stated that it was harmful error to allow introduction of the objectionable evidence for the jury's consideration in determining its answers to the special issues submitted, and that diversion of traffic resulting in the necessity of using circuitous routes is not compensable.

In its brief and by statements in its oral arguments before this Court the State makes no contention that the trial court erred in the admission of the testimony of appellees' witnesses, though some of it was objected to, but it relies wholly on the claimed error of the trial court in its special instructions numbers 3, 4 and 5 of the court's charge to the jury, the argued matter concerning noncompensable damages, and the claimed error and abuse of discretion of the trial court in refusing to permit the State to file its second trial amendment which, it is contended, would have further clarified the pleadings as to the ultimate issues and evidence in this case. The charge of the court was not brought forward in the transcripts, but the appropriate instructions in connection therewith are shown by appendices in the briefs of the parties. The three special issues submitted to the jury by the court and answers thereto are shown in the judgment brought forward.

In connection with appellant's first three points of error dealing with access of the 198.51 acre remainder, the trial court gave the following instructions to the jury, numbers 3, 4 and 5:

'INSTRUCTION ...