State v. Meyer

• Decision Date: 18 May 1966
• Docket Number: No. A--10937,A--10937
• Citation: 403 S.W.2d 366
• Parties: The STATE of Texas, Petitioner, v. Frank K. MEYER et ux., Respondents.
• Court: Texas Supreme Court

Page 366

403 S.W.2d 366

The STATE of Texas, Petitioner, v. Frank K. MEYER et ux., Respondents.

No. A--10937.

Supreme Court of Texas.

May 18, 1966.

Rehearing Denied June 22, 1966.

Waggoner Carr, Atty. Gen., Austin, Carroll R. Graham and Aden L. Vickers, Asst. Attys. Gen., for petitioner.

Vinson, Elkins, Weems & Searls, F. Russell Kendall, M. C. Chiles and Jarrel D. McDaniel, Houston, for respondents.

SMITH, Justice.

This is a condemnation proceeding brought by the State of Texas to acquire fee simple title to a 14.9456-acre strip of land out of a 103-acre tract belonging to respondents, Frank K. Meyer and wife, Lucille R. Meyer. The award of the special commissioners in this cause was $208,192.00, from which award the respondents appealed to the county court for a jury trial. After a trial in which the respondents waived any severance damages to the remainder, the jury found the market value of the strip taken to be $1,074,199.50. Judgment was entered in favor of respondents for this amount, granting to the State the fee simple title to the land condemned exclusive of any oil, gas or sulphur thereunder. The State appealed to the Court of Civil Appeals and that Court has affirmed the judgment of the county court. 391 S.W.2d 471. We affirm the judgments of the Court of Civil Appeals and the trial court.

The 14.9456-acre strip condemned by petitioner in this proceeding is a part of a 103-acre tract owned by respondents in the southwestern part of the City of Houston, Harris County, Texas. The larger tract is bounded on the north by Beechnut Street, on the west by Post Oak Road, on the south by Brays Bayou and on the east by the City of Houston Sewage Treatment Plant. The tract condemned is the portion of the larger tract which fronts on the east side of Post Oak Road for a distance of 2,618.93 feet, and is 240 feet in depth and contains 651,030 square feet. The portion taken by the State is bounded on the east by respondents' 88-acre remainder of the original 103-acre tract. At the time of the condemnation, respondents' land abutted on Post Oak Road, which road was at that time a conventional highway with traffic proceeding in both directions past the property. It cannot be disputed that this property has a high commercial value, being on a main traffic artery of a large and growing city, and this is substantiated to a degree by the fact that it lies across the highway from the successfully developed Meyerland Shopping Center.

In the State's petition for condemnation it is pointed out that this property is required in the construction of a controlled access highway as a part of the National System of Interstate and Defense Highways in the State of Texas; that for such purpose it is necessary to acquire the fee simple title to the land taken; and that roads are to be built as a part of said controlled access highway whereby the right of ingress and egress to or from the remaining property of respondents abutting on the new highway is not to be denied. It then excluded from the taking all oil, gas and sulphur which could be removed from beneath the condemned land without going on the surface of the land to extract such minerals. The parties agree that this reserved mineral interest has no value and no effect on the market value of the land taken. In the prayer the State asked that fee title to the land be vested in it, with the sole exclusion of the reserved mineral interest.

Thereafter, before the case was called for trial in the county court, respondents admitted the power of petitioner to condemn their land and waived any claim for severance damages to their remainder. They then presented a motion in limine to the court requesting that:

'* * * the Court instruct counsel for the Plaintiff that these Defendants have waived all right to seek damages to the remainder of Defendants' land and that the sole issue involved in this cause is the market value of the 14.9456 acres of land being condemned herein and therefore counsel should be instructed to make no reference in their voir dire examination of the jury panel, in their argument or in their questions to the witnesses as to the fact that Defendants own any land adjacent and contiguous to the land being condemned, and that their sole interrogation be in regard to the market value of said 14.9456 acres being condemned and that in view of these Defendants' waiver of any right to compensation or claim for damages to the remainder of their contiguous property that Plaintiff be restricted in its interrogations, arguments, evidence, and exhibits from showing or referring to the remainder of Defendants' lands or from attempting to introduce any evidence which will have the effect of attempting to show the jury that the size of Defendants' land is just merely being reduced by the taking of said 14.9456 acres. In truth and in fact, these Defendants have waived all right to compensation with the exception that they demand and will ever pray for the market value of the said 14.9456 acres of land which are herein being condemned and which in fact has already been appropriated by Plaintiff in this cause. Such being the case, the fact that Defendants own additional land adjoining the lands being taken has no bearing, as a matter of law, upon the sole issues being tried in this cause, and the sole reason for the introduction of evidence, or reference by opposing counsel, concerning such ownership would be to prejudice the rights of Defendants to recover the market value of their land being condemned * * *.'

The court in its order granting the motion in limine, after taking note of the fact that the State was not condemning the right of ingress to or egress from the property remaining and abutting on the improvements to be constructed, directed the State to refrain from revealing to the jury that the 14.9456-acre strip was only a part of a larger tract owned by respondents. The granting of this motion and the subsequent exclusion of evidence in compliance therewith are the subjects of points of error before this Court. The only information the jury received as to the use to which the condemned property was going to be put was that it was to be used for 'general highway purposes.' Furthermore, the trial court would not allow the State to show that the right of ingress and egress, hereinafter referred to as right of access, was not being condemned. Apparently the trial court was of the opinion that to have permitted this fact to be presented to the jury would necessarily have revealed, although perhaps indirectly, that the respondents retained land contiguous to the strip condemned, and respondents contend that such knowledge on the part of the jury would have defeated the purpose of the motion in limine and the order granting it. In making a disposition of this cause, we necessarily must determine whether the order granting the motion in limine and the rulings during the course of the trial excluding evidence in compliance with that order resulted in depriving the State of presenting a valid theory of valuation to the jury. It is our decision that under the facts of this case the order granting the motion in limine and the consequent evidentiary rulings by the trial court were proper and necessary in order to insure to the landowners the fair market value of the land taken.

Petitioner's first five points of error are closely related and are briefed and argued together. These points complain of the error of the Court of Civil Appeals in affirming the trial court's action in (1) granting the motion in limine; (2, 3) excluding the opinion testimony of two of the State's expert witnesses, Legge and Dailey, as to the value of the strip taken because of factors considered and the method by which they arrived at their opinions; (4) excluding the testimony of the State's witness, Stork, the Supervising and Designing Engineer for the Texas Highway Department, as to the improvements to be constructed on the land taken; and (5) excluding the State's Exhibits Nos. 5 and 6 which were highway plans showing the nature and location of the improvements to be built on the condemned property and to the north and south along Post Oak Road. In essence it is the State's contention that since respondents, after the taking of the condemned land, still have remaining land from which they have access to the land taken, upon which has been or will be constructed a frontage or service road, there has not been a whole taking in fee simple but that instead the State has acquired a fee title burdened with an easement for which it should be entitled to pay less than for a fee simple absolute.

On voir dire examination, out of the presence of the jury, two of the State's three expert witnesses as to value, Legge and Dailey, stated unequivocally that in arriving at their opinions of the value of respondents' 14.9456 acres they considered the part taken as a part of the larger 103-acre tract and took into consideration the fact that the right of access was not being acquired by the State. Furthermore, in arriving at a per acre value for the strip taken, they averaged the values of various portions of the whole tract even though the portion of the whole nearer the highway was worth more than other parts further removed insofar as highest and best use development is concerned. Each witness readily admitted that had he appraised the 14.9456 acres as a single tract of land, disregarding the remainder and the access rights, his appraisal would have been higher. After exclusion by the trial court of these witnesses' opinions as to value based on the above method of appraisal, the State did not choose to bring in their value testimony based on an appraisal of the condemned land as a whole taking. Also on voir dire, the State's third value witness, Edmonds, appraised the strip taken in conformity with the trial court's ruling that the remainder and retained access was not to be considered; his opinion of...