State v. Waco Independent School Dist.

• Decision Date: 17 January 1963
• Docket Number: No. 4030,4030
• Citation: 364 S.W.2d 263
• Parties: The STATE of Texas, Appellant, v. WACO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
• Court: Texas Court of Appeals

Page 263

364 S.W.2d 263

The STATE of Texas, Appellant, v. WACO INDEPENDENT SCHOOL DISTRICT et al., Appellees.

No. 4030.

Court of Civil Appeals of Texas, Waco.

Jan. 17, 1963.

Rehearing Denied Feb. 7, 1963.

Will Wilson, Atty. Gen. of Texas, Morgan Nesbitt, Asst. Atty. Gen., Austin, John B. Webster, Sp. Asst. Atty. Gen., Dallas, for appellant.

Richey, Scheehy, Teeling & Cureton, Sam Lanham, Waco, for appellees.

TIREY, Justice.

This is a condemnation case. The State brought the action to condemn for highway purposes 7.40 acres of the campus of the University High School in Waco. The special commissioners awarded to appellee the sum of $603,328.00. Both State and school district filed their objections to the award, and upon jury trial in the County Court judgment for condemnation was rendered and appellee was awarded the sum of $850,000.00 The State appealed.

The judgment is assailed on 16 Points. Points 1 to 7 inclusive are briefed together, and they are substantially to the effect that the Court erred: (1) In submitting to the jury issue 1 over appellant's objection that it contained an improper measure of damages; (2) Because the wording of the issue assumes that the remaining land and improvements do not have the same utility after the condemnation that they had prior to the condemnation and is, therefore, a comment on the weight of the evidence; (3) Because the wording of the issue assumes that there is a necessity after the condemnation for the acquisition of additional land for school use and is, therefor, a comment on the weight of the evidence; (4) That the issue is multifarious; (5) That there was no pleading to support the submission of the issue; (6) In refusing to submit appellant's Issues 1 and 2 seeking the jury's determination of the value of the High School campus to the School District, both before and after the condemnation; (7) In refusing to submit appellant's requested Issue 3 for a determination of whether or not the condemned property had a market value as of the date of the taking.

The Court submitted one issue to the jury:

'What do you find from a preponderance of the evidence was the reasonable cost, on November 7, 1961, of land, if any, and facilities, if any, reasonably necessary to replace the 7.40 acres of land and facilities taken by the State with land, if any is required, and facilities of the same or reasonably equal utility for high school purposes as that to which the 7.40 acres and facilities were reasonably utilized immediately prior to the taking in question, and reasonably necessary, if any are reasonably necessary, to restore the remaining 18.35 acres of land and facilities to the same or reasonably equal utility for high school purposes as that to which the 18.35 acres of land and facilities were reasonably utilized immediately prior to the taking in question?'

To which the jury answered: '$850,000.00.'

A statement is necessary. The State's suit was filed pursuant to authority of Art. 6674w-3, Vernon's Ann.R.C.S., which article provides in effect that the exercise of power of eminent domain under such article shall be subject to the laws and procedures described in Article 3264 through Article 3271, R.C.S., Vernon's Ann.Civ.St. arts. 3264-3271. During the course of the trial the school district filed its first trial amendment, in which it alleged that the correct measure of damages in this case was the reasonable cost to the school district of providing reasonable substitute facilities to replace facilities condemned by plaintiff. Plaintiff duly excepted to this allegation and it was overruled. It is the State's contention that the difference between the value of the entier campus (25 acres) immediately before the taking, and the value of the remainder immediately after taking, and the market value of the condemned property, together with all damages, if any, which resulted to the remainder of the campus as a result of the condemnation, is the proper measure of damages. The State further contends that constitutional guarantee for compensation for the appropriation of the property for public use is controlled by Title 52 of our Revised Civil Statutes, and that Article 3265 sets forth the method of the determination of the compensation due to a property owner under the exercise of the right of eminent domanin; that the concept of market value as the result of damages as set forth in the Article was recognized by our Supreme Court prior to the enactment of the statute, see Buffalo Bayou, B. & C. R. R. Co. v. Ferris, 26 Tex. 588 (1863); that our Courts have continued to recognize the market value for compensation as shown by the landmark case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 and 979 (979 being the opinion of the Court on motion for rehearing). The State further contends that there is no precedent in the decisions of the Texas Courts for the use of the cost of replacing the condemned facilities as a result of the taking. In opposing the contentions of the State the school district says in effect that Article 1, Section 17 of our State Constitution, Vernon's Ann.St. prevents appellant from taking, damaging or destroying or applying to public use any property without adequate compensation being made therefor. Such section, in part, provides: 'No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *.' This Court applied that rule in McLennan County v. Sinclair Pipe Line Company, Tex.Civ.App., 323 S.W.2d 471, n. w. h. See also Sinclair Pipe Line Company v. State, Tex.Civ.App., 322 S.W.2d 58, n. w. h. Testimony was tendered to the effect that the campus originally contained some 25 acres, and that the taking of the 7.40 acres included 4 buildings plus the major part of two other buildings; that for all practical purposes, the taking has included most of the classroom facilities of the high school, and that there is not much left. Mr. Downing, the Superintendent, testified to the effect that for all practical purposes the high school 'had been wiped out' because the majority of the classrooms had been taken, and classes could not be successfully conducted with the facilities that were left, and the school is reined by the taking as far as capacity is concerned; that after the taking that the school is left with a $250,000.00 gymnasium, a portion of the campus and three shop buildings, and that in order to make use of those facilities it was necessary to rebuild the academic classrooms; that without the classrooms, the gymnasium would be of no value to the school system; that in his opinion, as Administrator of public schools, that it is desirable and necessary to continue this program and to rebuild the school. He further testified to the effect that he had been a school teacher for 25 years, and during that time he had served as Administrator, Principal, Assistant Superintendent, and Superintendent for 16 or 17 years; that public high schools in the city of Waco or elsewhere, so far as he knew, were not bartered for sale as private property, and that the Waco School District did not sell or trade its public schools; that public schools are not bought and sold. In fact, there is an absence of testimony in the record that public school property is traded and sold in the open market. So the major question in this case is: Did the Trial Court err in holding as a matter of law that the property of the school district as such did not have a market value, and that the form of submission in the Carpenter case, supra, would not give the school district an adequate measure of damages? We think the answer is 'No.' Out view is...