State v. Scarborough, 7597

• Decision Date: 27 October 1964
• Docket Number: No. 7597,7597
• Citation: 383 S.W.2d 839
• Parties: The STATE of Texas, Appellant, v. J. D. SCARBOROUGH et ux., Appellees.
• Court: Texas Court of Appeals

Page 839

383 S.W.2d 839

The STATE of Texas, Appellant, v. J. D. SCARBOROUGH et ux., Appellees.

No. 7597.

Court of Civil Appeals of Texas, Texarkana.

Oct. 27, 1964.

Rehearing Denied Nov. 11, 1964.

Samuel D. McDaniel, Jackson Hubbard, Asst. Attys. Gen., Austin, for appellant.

Russell & Perkins, Mt. Pleasant, for appellees.

CHADICK, Chief Justice.

This is an eminent domain action. The judgment in a condemnation suit awarding landowners' damages for diminution in value of two small residual tracts is affirmed.

The State condemned and took 2.4 acres out of a 3.9 acre tract of land belonging to Mr. and Mrs. J. D. Scarborough. The award made to compensate for the acquired acreage is not questioned. Evidence was offered to show damage to the 1.5 acre residue. The State in this excerpt from its brief suggests the nature of the damage claimed, to-wit: 'Study of the record has revealed * * * only four things which could possibly be damaging about the taking. (1) The severance itself (though this seems farfetched in the case of residential homesite property); (2) Proximity of the house on the north remainder to the new highway; (3) The unfenced condition of the new right-of-way; (4) The cost of a driveway to serve the south remainder.'

The residual tracts are non-contiguous, lying on either side of Interstate Highway No. 30, the dwelling house on a half-acre strip to the north and the other portion of approximately an acre lying on the south side with no direct access facility from one tract to the other. The right-of-way of Interstate 30 passes within 28 to 34 feet of the dwelling. The landowners and their seven children have occupied the entire 3.9 acre tract as a homestead since 1945, and in that time the produce of its cultivation and pasture has been a substantial adjunct of the family larder.

The landowners testified and offered two expert appraisal witnesses. Each expert testified to acquaintance with the tract for a long period of time extending back several years beyond the initial condemnation proceedings. These experts, as well as the husband landowner, expressed opinions as to market value of the residue before and after the condemned portion was taken.

The question for decision is whether or not there is evidence, and if so, sufficient evidence to support the jury's finding that the residual acreage was diminished $1500 in value. The State argues that opinions of value tendered into evidence by the landowners have no probative weight because the witnesses did not articulate the nature of the damage, the effect of the damage on the various part of the residual acreage and the relationship of the damage to market value differences, if any, before and after the State's acquistion. To show error, the State cites and primarily relies upon three utility right-of-way cases, Tennessee Gas & Transmission Co., v. Zirjacks, (Tex.Civ.App., wr. dism.), 244 S.W.2d 837; City of Cedar Hill v. Wheeler, (Tex.Civ.App., no writ), 326 S.W.2d 236; Texas Electric Service Co. v. Vest, (Tex.Civ.App., error ref., n.r.e.), 310 S.W.2d 733. Also cited as supporting the State's proposition are County of Bexar v. McAlpine (Tex.Civ.App., error ref., n.r.e.), 363 S.W.2d 891; County of Bexar v. Cooper (Tex.Civ.App.1961) 351 S.W.2d 956; Texas Electric Service Company v. Lineberry, 162 Tex. 570, 349 S.W.2d 105; Texas Electric Service Company v. Campbell, 161 Tex. 77, 336 S.W.2d 742.

In the Tennessee Gas & Transmission Co. v. Zirjacks case, (244 S.W.2d 837, at p. 838), it is said: 'One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value. A mere conclusion as to market value is insufficient for this purpose.' Obviously this refers to a party claiming damage, not his value witness. In the same paragraph from which this quotation is taken the opinion states, 'We have carefully examined the statement of facts and find no specific testimony detailing in what ways the laying of the pipe line (thirty inches in diameter) twenty-four inches under the surface across the property within the fifty-foot strip would affect the value of the land lying outside the fifty-foot strip. * * *' This language is the equivalent of a statement that there is no proof of damage to the land outside the right-of-way.

In the Texas Electric Service Company v. Vest case (310 S.W.2d 733), a 50-foot strip across eight sections out of a ranch of thirty-seven sections of land was condemned to provide right-of-way for the Electric Company's lines. The only damage to the land outside of the condemned strip was said to be the burden placed on it of ingress and egress to the right-of-way. To use the words of the opinion, '* * * [T]he witnesses did not sufficiently explain or detail how and why' the acreage outside of the right-of-way would be damaged. In City of Cedar Hill v. Wheeler, (326 S.W.2d 236), the value witness offered by the appellee testified to certain factors that governed his opinion of value, but the court at p. 243 said: 'We are still of the opinion that the factors recited by appellee's witness Currin were stated in the abstract, leading the jury into the realm of speculation as to what concrete elements of injury to the land is comprehended in his estimate of depreciation. As we read State v. Carpenter [126 Tex. 604, 89 S.W.2d 194], supra, it does not hold that the naked opinion of an expert, without some evidentiary basis, would support a verdict such as we have here.' Here again, absence or the unsatisfactory condition of evidence of damage is a foundation of the decision.

Two of these three cases deal with exceptionally large tracts of land over which utility right-of-ways had been appropriated. Common to each of the cases is the insufficiency of evidence of damage to the residual acreage, that is, the large acreage lying outside of the condemned strip. Though emphasis in the opinions is placed upon the failure of the expert witness to specify the nature of the damage to the residual acreage and translate that damage into the market price, the insufficiency of evidence from any source showing damage to the residual acreage is the common denominator of the cases. In the case at hand the damage and its...