State v. Littlefield
| Decision Date | 30 October 1940 |
| Docket Number | No. 10761.,10761. |
| Citation | 147 S.W.2d 270 |
| Parties | STATE et al. v. LITTLEFIELD. |
| Court | Texas Court of Appeals |
Appeal from District Court, Gonzales County; Lester Holt, Judge.
Action by O. I. Littlefield against the State of Texas and others, for injuries to real property allegedly caused by obstruction of the natural flow of the waters of a creek across plaintiff's land. From a judgment for plaintiff, defendants appeal.
Judgment affirmed.
Gerald C. Mann, Richard H. Cocke, Pat Coon, and Geo. W. Barcus, all of Austin, for appellants.
Duncan & Davis and John A. Romberg, all of Gonzales, for appellee.
This is an appeal from the district court of Gonzales County awarding damages to appellee, O. I. Littlefield, for injuries to real property alleged to have been caused by the obstruction of the natural flow of the waters of O'Neil Creek across appellee's land, resulting from the construction of Highway No. 80, by the appellants, who are the State of Texas and its State Highway Commission. The judgment appealed from is based upon a special issue jury verdict.
Appellants' brief contains seventeen assignments of error, followed by eight general propositions of law. No assignment or proposition is briefed separately, but some of them are discussed under various subheads under the general title of "Statement, Authorities and Arguments." This court is not required to consider assignments of error which are not briefed, unless a fundamental error is disclosed. Certain assignments in appellants' brief are not discussed or mentioned in that part of the brief entitled generally "Statement, Authorities and Argument." These assignments will be considered waived and not further noticed as none of them present fundamental error.
Appellants contend that there is neither pleadings nor evidence to support the judgment of the trial court. In support of this contention, it is pointed out that appellee, who owned a 204.5-acre tract, conveyed 5.36 acres thereof to the State for highway purposes, and that the State is not liable for the negligence of its agents. From this it is argued that any damage resulting from the construction of the highway by reason of the obstruction of the waters of O'Neil Creek either resulted from negligence for which the State is not liable, or was such an injury as would naturally result from the construction of the highway, and therefore appellee received full compensation therefor when he conveyed the 5.36-acre strip to the State. This contention is overruled. The consideration for the right-of-way conveyance can not "properly be held to embrace damages which might thereafter accrue from constructing the roadway in such manner as to overflow and thereby injure appellees' lands." State v. Hale, Tex.Civ.App., 96 S.W.2d 135, 141. Appellee's suit is not based upon negligence, but is one seeking compensation for private property damaged by public use.
Appellant also contends that the authorization of the Legislature for the bringing of this suit limits the recovery of appellee to the land actually inundated and washed away as the result of the obstruction in the natural flow of the waters of O'Neil Creek caused by the construction of the highway.
The resolution of the Legislature reads as follows:
Appellee pleaded that approximately 65 acres were actually inundated. The judgment was based upon jury findings as to the diminished market value of appellee's entire tract of 199.14 acres. The resolution of the Legislature can not be construed as restricting appellee to the damages for that portion of his farm actually destroyed, and it is well settled that the taking or destruction of a part of a tract may, and often does, diminish the value of the remainder of the tract and damages are recoverable therefor. State v. Carpenter, 126 Tex. 604, 89 S.W. 2d 194, 979; State v. Hale, supra.
Appellants challenge the sufficiency of the evidence bearing upon the issue of the damages sustained. Appellee testified that his land was worth $35 per acre prior to the construction of the highway. The jury found the value to be $25 per acre. No witness testified that in his opinion the land had the value fixed by the jury. There was testimony, however, that the land was worth only $15 per acre prior to the construction of the highway. The statement of facts also discloses other evidence which could properly be considered by the jury on the issue of market value, although this evidence is not in the form of an opinion as to the market value per acre. A jury finding as to market value is not without support of the evidence simply "because no witness testified to the identical amount" found by the jury. Appellants assignments and propositions on this point are without merit and are overruled. Adams v. Cohn, Tex. Civ.App., 28 S.W. 909; Houston Tie & Lumber Co. v. Hankins, Tex.Civ.App., 200 S.W. 237.
Appellants further contend that the trial court submitted an erroneous measure of damages to the jury. No authorities are cited in support of this contention, and we are only called upon to decide whether or not the trial court's charge is subject to specific objections made before the submission to the jury which have been properly carried forward by assignments of error.
By special issue No. 3, the jury was required to find the market value per acre of appellee's land in 1934, immediately before the...
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