State v. South Main Baptist Church, 13885

• Decision Date: 11 October 1962
• Docket Number: No. 13885,13885
• Citation: 361 S.W.2d 898
• Parties: The STATE of Texas et al., Appellants, v. SOUTH MAIN BAPTIST CHURCH et al., Appellees.
• Court: Texas Court of Appeals

Page 898

361 S.W.2d 898

The STATE of Texas et al., Appellants, v. SOUTH MAIN BAPTIST CHURCH et al., Appellees.

No. 13885.

Court of Civil Appeals of Texas, Houston.

Oct. 11, 1962.

Rehearing Denied Nov. 15, 1962.

Joe Resweber, County Atty., Charles F. Mitchell, Edward J. Landry, Asst. County Attys., Houston, for appellants.

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

WERLEIN, Justice.

This suit was brought by the State of Texas and Harris County, appellants, against South Main Baptist Church and its trustees, and other parties not involved in this appeal, to condemn for highway purposes three tracts of land belonging to the Church in Houstom, Texas. The first tract sought to be condemned consists of 38 square feet in Block 13; the second tract, 9374 square feet in Block 12; and the third tract, 20,409 square feet in Block 7, all in the James Bute Addition in the City of Houston, Harris County, Texas. To the award of $82,045.00 by the special commissioners appointed by the court, apellees filed their objections in the trial court, and upon a trial by jury were awarded a judgment in the sum of $211,348.00, from which judgment appellants have duly perfected their appeal.

The three tracts of land actually taken herein will be referred to as Tract 1, Tract 2 and Tract 3. The jury allowed for Tract 1 $114.00 and $7500.00 damages to the remainder of the Church property in Block 13; for Tract 2, which was entirely taken, $35,152.50; for Tract 3, $80,183.75 and $31,593.00 damages to the remainder of the Church property in Block 7; and damages in the sum of $56,804.75 for decrease in the intrinsic value of Tract 4 due to the taking of Tracts 1, 2 and 3.

Tract 4, upon which is situated the Church sanctuary and an educational building, like Tracts 1, 2 and 3, is a separate and isolated tract of land non-contiguous to any one of the other tracts.

We here insert a map of a portion of the James Bute Addition, being Appendix I to appellants' brief, showing the tracts in question.

EXHIBIT

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellants contend that the finding by the jury of $7500.00 damages to the remainder of the tract from which Tract 1 was severed, is so against the great weight and preponderance of the evidence as to be manifestly unjust. Tract 1 contains only 38 square feet near the rear of the tract of land upon which is situated appellees' recreation building. Appellees in seeking damages to the remainder of the tract of land from which Tract 1 was severed, rely principally upon the fact that the Southwest Freeway, for which purpose the condemnation in question was undertaken, now passes near the rear of said recreation building and exposes its rear to public view. They claim that as a result thereof they have been damaged to the extent of what it will cost to make the rear of the building look like the front of the building. The east and south walls of the recreation building, and a little turn-around near the rear, are constructed of a buff-faced brick, whereas the rear of said recreation building, which is now more exposed to view because of the Freeway, is constructed of what is commonly known as pink or reddish common brick. Between the Freeway and the building is a service road and ample room for a sidewalk, as shown on Plaintiffs' Exhibit 19. The Richmond Avenue exit from the Freeway permits leaving the Freeway just south of Richmond Avenue and continuing on such exit road in a northerly direction across Richmond, thus permitting direct acress to the recreation building on Colquitt Avenue.

We think that the evidence wholly fails to show that the use or utility of the recreation building has been injuriously affected by taking as a part of the service road or sidewalk the small tract of 38 square feet. The rear walls of such building are substantial brick walls and no change whatever has been made therein by the construction of the Freeway, or the taking of the 38 square feet. The inserted map shows that the rear of such building was exposed to view by people on Bute and Colquitt Streets and perhaps on West Main Street prior to the taking, except as their vision was obscured by buildings on such streets. Witness Lee testified that he thought there was some damage to the recreation building and that such damage would be the amount that it would take to make the rear of the building look like the front of the building. This was substantially the testimony of Witness Clawson also.

It is our view that since no change whatever was made in the building itself by appellants, they are not responsible for the fact that the public may have a little better view of the rear of the recreation building now than they had prior to the taking and the construction of the Freeway. Witness Allen, who eqalified as an expert realtor and appraiser, testified as to the value of the 38 square foot triangle that was taken, and also testified that such taking just barely nipped off the corner of the tract on which the recreation building is located, and that he did not include the improvements because the improvements were not affected at all. Lloyd Fadrique, another qualified realtor and appraiser, also testified as to the value of Tract 1 taken, and testified that he felt that the remainder was not damaged by the taking of the small portion of land which was not being used and which was taken off of the rear of the site upon which the educational building was constructed and which would not damage its use or utility. Mr. Finley, a real estate agent and appraiser, testified that the value of the remainder from which Tract 1 was severed, was the same before and after the taking. Dust, noise and traffic hazards, if any, incident to the use of the Freeway cannot be considered as they are common to all the buildings and homes located near the Freeway. The cost of beautifying the recreation building when it is structurally sound and nothing has been done to change or mar its appearance in any way whatever, does not constitute a proper element of damages. Furthermore, the testimony of Witnesses Lee and Clawson with respect to such alleged damage as the result of the taking of Tract 1, consists merely of conclusions. As stated in Tennessee Gas and Transmission Co. v. Zirjacks, Tex.Civ.App., 244 S.W.2d 837, error dism., in the opinion of Justice Norvell: '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.'

Basing our holding on the entire record, it is our view that the finding of damages by the jury of $7500.00 to the remainder of the tract of land from which Tract 1 was taken is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

We have read the statement of facts and have concluded...