State v. Schmidt
| Decision Date | 27 October 1993 |
| Docket Number | No. 1,Nos. D-1006,D-1509,1,s. D-1006 |
| Citation | 867 S.W.2d 769 |
| Parties | STATE of Texas and City of Austin, Petitioners, v. Robert M. SCHMIDT and Richard A. Massman, Co-Trustees of the Leon A. Schmidt Children's Trustet al., Respondents. STATE of Texas and City of Austin, Petitioners, v. AUSTEX, LTD. et al., Respondents. |
| Court | Texas Supreme Court |
The principal issue in these two consolidated cases is whether a landowner, part of whose property is taken by power of eminent domain to convert a roadway into a controlled access highway, is entitled to compensation for a diminution in the value of the remainder due to a diversion of traffic, an increased circuity of travel to the property, a lessened visibility to passersby, and the inconvenience of construction activities. The lower courts allowed the compensation in both these cases. State v. Schmidt, 805 S.W.2d 25 (Tex.App.--Austin 1991); State v. Austex, Ltd., 862 S.W.2d 1 (Tex.App.--Austin 1993). We disagree and accordingly reverse the judgments of the court of appeals and render judgment against the landowners.
These cases involve two adjoining tracts of land abutting U.S. Highway 183 in the City of Austin some seven miles north of downtown. One of the tracts is owned by the Leon A. Schmidt Children's Trust No. 1, and hence we refer to it as the Schmidt tract. The other is owned by Austex, Ltd., a Nevada corporation, and Cavendish Holdings, Ltd., a Maryland corporation, and we refer to it as the Austex tract. The immediate area is depicted in this schematic:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
The rectangular Schmidt tract extends some 75 feet along the highway and 200 feet back. Toward the rear of the property is a building for two tenants--at the time of trial, a personal computer software outlet and a film processing business. The area between the e building and the highway is used for parking.
The 3.76-acre Austex tract surrounds the Schmidt tract on three sides and thus fronts the highway on both sides of the Schmidt tract, approximately 40 feet on one side and 150 feet on the other. There are two buildings on the Austex tract, one to the rear of the property, and the other along one side across from the building on the Schmidt tract. These buildings, known as the Town North Shopping Center, were occupied at the time of trial by a post office substation, a night club, and several retail businesses, including a bookstore, restaurant, beauty salon, video store, and office supply store. The narrower strip on the one side of the Schmidt tract is vacant. On the other side, the area nearest the highway is used for parking.
Highway 183--or Research Boulevard as it is known at this location--is a major traffic artery, and much of the land along both sides of it, like the Schmidt and Austex tracts, is used for free standing retail outlets and other commercial developments. Beyond and sometimes among these developments are residential areas. In the vicinity of the Schmidt and Austex tracts, the highway has six lanes, three for traffic in each direction separated by a grassy median, all on the same grade as intersecting streets and the surrounding property. Buildings on adjacent property, including those on the Schmidt and Austex tracts, are clearly visible from the highway. The Schmidt and Austex tracts are connected to the highway by driveways allowing traffic in the lane nearest the tracts direct access. Traffic in the opposite direction must cross the highway at an intersection and gain access by the side street, Fairfield Drive, or by returning back the opposite direction and using a driveway.
The State of Texas and the City of Austin (both of which we refer to as the State) have decided to convert Highway 183 into a controlled access highway. This change entails eliminating grade crossings, which will be accomplished in the area of the Schmidt and Austex tracts by elevating the main traffic lanes some 37 feet. As a result, the buildings below will be less visible to motorists on the elevated highway. All six lanes at grade will remain in service, and access to the tracts from those lanes will remain unchanged. Most of the traffic, however, will be diverted to the elevated main highway from which motorists must exit by a ramp to the lower roadway to gain access to the tracts. This route of access will be somewhat more circuitous and less convenient than at present. Construction is to be done in phases extending over a total of five years.
The alterations to Highway 183 require expansion of the existing right-of-way a little less than seven feet into the Schmidt and Austex tracts (shown by the dotted line in the schematic above) to meet minimum right-of-way requirements for federal funding of the highway construction. Accordingly, the State instituted these condemnation proceedings to take a small strip of land--about 503 square feet from the Schmidt property and about 1,275 square feet from the Austex property--along the highway frontage. The special commissioners awarded the owners of the two tracts $7,559 and $105,000, respectively, and the owners appealed.
In the case of the Schmidt tract, the owner stipulated that the value of the strip taken was $7,559, but claimed additional compensation for the decreased market value of the remainder of the tract due to two factors: the impairment of its visibility from the main highway, and the inconvenience and disruption caused by construction activities extending over a period of several years. The owners of the Austex tract also claimed compensation for a reduction in the market value of the remainder of their property due the same two factors plus two others: the diversion of traffic from the highway at grade level, and the resulting circuity of travel required to gain access to the tract. Each case was tried to a jury, who found severance damages--the diminution in the market value of the remainder after the condemnation--of $74,880 for the Schmidt tract and $200,000 for the Austex tract. The jury in the Austex case also found the value of the strip taken to be $18,932. Each trial court rendered judgment on the verdict. The State appealed only the award of severance damages, and not the awards for the land actually taken. The court of appeals affirmed both judgments.
Article I, section 17 of the Texas Constitution provides in pertinent part: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made...." Very early in the State's history, we held that when part of a person's property is taken, this provision requires adequate compensation both for the part taken and any severance damages to the remainder. Buffalo B., B. & Colo. R.R. v. Ferris, 26 Tex. 588, 603 (1863) ). Consistently, section 21.042(c) of the Texas Property Code now provides:
If a portion of a tract or parcel of real property is condemned, the special commissioners shall determine the damage to the property owner after estimating the extent of the injury and benefit to the property owner, including the effect of the condemnation on the value of the property owner's remaining property.
The measure for determining severance damages was established in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 197-198, 200 (1936):
We are of the opinion that the proper rule for ascertaining the measure of damage to the remainder of a tract of land where a part only has been taken for public use is directly analogous to the rule which is applicable when there has been a permanent injury to land by reason of the construction of a public improvement, or the construction of an improvement by a private agency exercising the right of eminent domain. By this rule the damages are to be determined by ascertaining the difference between the market value of the remainder of the tract immediately before the taking and the market value of the remainder of the tract immediately after the appropriation, taking into consideration the nature of the improvement, and the use to which the land taken is to be put. Of course, this rule relates to the ascertainment of the damages to the property itself. There may possibly be items of special damages which may not be accurately reflected in the difference between the market value before and the market value after, but everything which affects the market value of the land itself, having due regard for past and probable future injuries, may be accurately reflected by ascertaining the difference in value, when all the legitimate testimony is properly submitted to the jury for consideration.
* * * * * *
Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value. Evidence should be excluded relating to remote, speculative, and conjectural uses, as well as injuries, which are not reflected in the present market value of the property.
The rule in the Carpenter case, which is as settled as any in our jurisprudence can be, is the basis for the position taken by Schmidt and Austex.
Their argument runs as follows. Carpenter requires that all factors affecting the fair market value of the remainder be considered in determining severance damages. It cannot be denied that traffic patterns, convenience of access,...
To continue reading
Request your trial
-
Weingarten Realty Investors v. Albertson's, Inc.
...whole or a part of the owner's `property.'" State v. Schmidt, 805 S.W.2d 25, 29 (Tex.App. — Austin 1991), rev'd on other grounds, 867 S.W.2d 769 (Tex.1993). Generally, in Texas, "the government compensates the owner before appropriating property, either by paying a mutually agreed price or ......
-
Dep't of Transp. v. Tomkins
...land from the M-6 highway construction project for which, arguably,38 part of their land was taken. MDOT additionally relies on State v. Schmidt,39 cited by the Michigan Supreme Court in n. 14 of Spiek.40 In Schmidt, the Texas Supreme Court rejected the property owner's argument that the de......
-
Regency Outdoor Advertising v. City
...v. Weiswasser (1997) 149 N.J. 320, 693 A.2d 864, 876; but see State v. Lavasek (1963) 73 N.M. 33, 385 P.2d 361, 364-365; State v. Schmidt (Tex.1993) 867 S.W.2d 769, 774.)6 In these cases, the "right to be seen" bears upon the value of the residual parcel. In other words, the diminution of v......
-
Michigan Dept. of Transp v. Tomkins
...citation omitted). 31. 456 Mich. 331, 348, 572 N.W.2d 201 (1998). 32. Tomkins, 270 Mich.App. at 162-163, 715 N.W.2d 363. 33. 867 S.W.2d 769 (Tex., 1993). 34. Tomkins, 270 Mich.App. at 164-166, 715 N.W.2d 35. 326 Mich. 183, 40 N.W.2d 111 (1949). 36. 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328 (......