State v. Richardson, 2673.
| Decision Date | 22 October 1948 |
| Docket Number | No. 2673.,2673. |
| Parties | STATE v. RICHARDSON et ux. |
| Court | Texas Court of Appeals |
Appeal from Palo Pinto County Court; J. W. Birdwell, Judge.
Condemnation proceedings by the State against Theo Richardson and wife to condemn realty in connection with relocation and improvement of a state highway. From an award in an allegedly inadequate amount by Commissioners, Theo Richardson and wife appealed to the county court. From a judgment of the county court for damages in a greater amount, the State appeals.
Reversed and remanded.
W. O. Gross, Russel Moran and Herman Fitts, all of Mineral Wells, for appellant.
Bouldin & Bouldin, of Mineral Wells, for appellees.
This is an appeal from an award made by the duly appointed Commissioners in a condemnation proceeding involving about six acres of land in Palo Pinto County, Texas, incident to the relocation and improvement of State Highway No. 180, from a new bridge across the Brazos River east one mile, more or less. It was agreed that the condemnation proceedings were regular, that the land taken was subject to condemnation for such purpose, and the only issue involved in the trial which was to a jury, was as to the amount of compensation to which the owners were entitled. The award made by the Commissioners was $360 for the land taken and $70 as damages to the remainder, making a total of $430, from which the Richardsons appealed to the County Court, where they recovered judgment for $1,200 for the land taken and $1,000 for damages to the remainder, a total of $2,200, from which the State appealed to this court.
The case was submitted to the jury on two special issues:
1. From a preponderance of the evidence, what do you find was the actual cash value on or about the 11th day of July, 1947, of the 6 acre tract of land of defendants Theo Richardson and Mayzelle Richardson, taken by the State of Texas for its purpose to be used as a State Highway?
The jury answered $1,200.00.
2. Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by defendants Theo Richardson and Mayzelle Richardson in common with the community in general and not peculiar to them and connected with their ownership, use and enjoyment of the remaining 41 acre tract, and taking into consideration the uses to which the 6 acre tract taken by the State of Texas is to be subjected, what do you find from a preponderance of the evidence was the damage (if you find any damage was done to said 41 acre tract) to the remaining 41 acre tract not taken, immediately after the taking of said 6 acre tract?
The jury answered $1,000.00.
Plaintiff interposed numerous objections and exceptions to the charge as given by the court. To the charge as a whole, it was objected, (a) that said charge erroneously failed to submit to the jury whether the land in question had a market value on or about July 11, 1947, but (b) said charge assumes, and in effect instructs, the jury that said property did not have a market value on said date; (c) that said charge erroneously failed to submit to the jury any special issue as to the market value of the property taken on or about July 11, 1947; (d) that no issue was submitted as to the market value of the remainder of the property not taken on or about July 11, 1947; (e) that said charge erroneously failed to give the jury a definition of cash market value.
To the submission of Special Issue No. 1, it was objected, (a) that there was no legal or competent evidence in the record showing or tending to show that the property in question did not have a cash market value on the above mentioned date; (b) that said special issue assumed as a fact that said property had no cash market value on said date; and (c) that there was no legal or competent evidence in the record supporting said issue, in that testimony as to actual value was inadmissible and improperly admitted over objection, there being no predicate laid for the introduction of such testimony.
Plaintiff objected and excepted to Special Issue No. 2 in the court's charge relating to damage to the remainder of the property not taken for highway purposes, (a) in that said issue did not submit a proper or legal method of determining damage to the remainder of said property; (b) that said issue failed to inquire of the jury as to the value of the remaining property either before or after taking of the six acres for highway purposes; (c) that said issue was erroneous in that it left the jury the right to speculate as to what constitutes damages to the remaining tract and in effect permitted the jury to consider elements not proper on the issue of such damages and tends to encourage the recovery of double damages; (d) that it was further erroneous in that it would permit the jury to include as an element of damages speculative and consequential damages such as the cost to the defendants of keeping their fences in repair in the future; (e) and that said Special Issue No. 2 was upon the weight of the evidence in that it instructs the jury in effect that the remaining land had suffered damage by reason of the taking of said six acres for highway purposes.
All of said exceptions having been duly presented, were by the court overruled, to which ruling, plaintiff excepted.
In due time, appellant tendered and requested submission of its Requested Special Issue No. 1, which was as follows:
Special Issue No. 2.
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