State v. Walker

Decision Date21 May 1969
Docket NumberNo. B--1075,B--1075
Citation441 S.W.2d 168
PartiesSTATE of Texas et al., Petitioners, v. G. A. WALKER, Sr., et al., Respondents.
CourtTexas Supreme Court

Hart & Hart, James P. Hart, Austin, Gaines Baldwin, Marshall, for petitioners.

Reagan R. Huffman, Jones, Jones & Baldwin, Franklin Jones, Jr., Marshall, for respondents.

SMITH, Justice.

The State of Texas and the City of Marshall, both acting by and through the City, hereinafter referred to as the Plaintiffs, instituted this condemnation proceeding against G. A. Walker, Sr. and wife, Lucy H. Walker, G. A. Walker Oil Company, Inc., a corporation, J. B. Watson, Jr., O. D. Huffman, and Phillips Petroleum Company, a corporation, hereinafter referred to as Defendants, to condemn for highway purposes a strip of land described by metes and bounds as being 0.207 acres, more or less, a part of the Peter Whetstone Survey in Harrison County, Texas. As shown on the plat attached hereto, the 0.207 acres strip of land, taken to widen Highway 59, fronted 180 feet on the highway and 50 feet on East Houston Street. The strip taken was out of and a part of a tract of land consisting of 2.087 acres owned by G. A. Walker. The entire tract was Lshaped and had a frontage of 180 feet on Highway 59 and a frontage of 286 feet on East Houston Street. The Defendants, other than the Walkers, apparently were made parties to the condemnation proceedings for the reason that before and at the time of the taking of the 0.207 acres, a lease was in effect between Walker and J. B. Watson, Jr., covering the part of the land at the intersection of Highway 59 and East Houston Street, used by Watson as a filling station business; the remainder of the frontage on Highway 59 was under lease to Huffman and a building used as a cafe was situated thereon. Walker, as a jobber for Phillips Petroleum Company, used part of the 2.087 acres in connection with the operation of his wholesale bulk sales business. Situated thereon were two warehouses fronting on East Houston Street, which were used by Walker.

Since the improvements were partly situated on the remainder tract of approximately 1.880 acres, the Plaintiffs also condemned:

'title to all of two masonry buildings and two hydraulic vehicle hoists located partially on the remaining property of which the above described property was originally a portion, said improvements being traversed by the third call of the above metes and bounds description. The third call enters the North side of the cafe building seventeen feet East of the Northwest corner of said cafe and leaves said cafe on the South side seventeen feet East of the Southwest corner of said cafe. The third call bisects the hydraulic truck hoist sixteen feet East of the West end of the said hydraulic truck hoist. The third call bisects the hydraulic car hoist 15 feet East of the West end of the said hydraulic car hoist. The third call of the above metes and bounds description enters the North side of the service station building eighteen feet East of the Northwest corner of said service station and leaves said service station on the South side eighteen feet East of the Southwest corner of said service station. The portions of the above described improvements lying East of said third call would be in such condition that they could not be adequately reconstructed at such location; in addition the temporary right to enter upon the property remaining, of which the above described premises were originally a portion, for the sole purpose of removing all of said two masonry buildings and the two hydraulic vehicle hoists.'

The Special Commissioners awarded the Defendants the sum of $31,493.00 as damages for the taking of the property above described. On December 29, 1966, within the time prescribed by law, the Defendants filed objections to the award of were docketed and trial of the issues had in the County Court of Harrison County, the Commissioners, and the proceedings Texas. Prior to the beginning of the trial, the Defendants admitted that the property in question was subject to condemnation, had been condemned and taken possession of by the Plaintiffs, and that the only issue in controversy was the value of the property taken and the damage to the remainder. In view of this admission, the burden of proving the market value of the land became the burden of the landowner. The Defendants claimed and were granted the right to open and close the evidence and argument. The charge of the court, to which there was no objection, defined 'market value' 1 in the language approved by our decisions. 2 The special issues 3 were in a form in substantial compliance with the issues submitted in the case cited under footnote 2. It should be noted that there appears in Special Issue 3, the additional phrase 'or may be subjected'.

The jury in answer to these issues found that the market value of 0.207 acres of land condemned by the Plaintiffs for highway purposes at the time it was condemned, considered as severed land, was $47,652.00; the Defendants' tract of land not condemned, immediately before the condemnation, had a market value of $49,350.00 and a market value, immediately after the taking, of $30,500.00. The trial court entered judgment awarding to the Plaintiff the State of Texas, the fee simple title to the 0.207 acres condemned, except there was 'excluded from said estate condemned all the oil, gas and sulphur which can be removed from beneath said land without any right whatever remaining to the owner of such oil, gas and sulphur of ingress or egress to or from the surface of said land for the purpose of exploring, developing, drilling or mining the same * * *.'

The court entered judgment for the Defendants for the sum of $35,009.00 as damages in addition to the sum of $31,493.00, which had been deposited in the registry of the court. The court ordered the City of Marshall to pay the additional sum of $35,009.00 to the County Clerk and the Clerk, upon receipt of this sum, was ordered to pay the total judgment in the sum of $66,502.00 to the Defendants. The plaintiffs' motion for new trial was overruled. On appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, at Texarkana, Texas, the judgment of the trial court was affirmed. 430 S.W.2d 13. The Chief Justice did not participate in the consideration and disposition of the Appeal. We reverse the judgments of the courts below and enter judgment remanding the cause to the trial court for a new trial.

We granted the writ of error on eight of the nine points alleging error committed below: (1) in holding the State and City are liable to pay as damages to the land not taken the cost of converting such land to a different and more profitable use; (2) in holding that in this case, in valuing a partial taking of land where the part taken and the part not taken were devoted to separate uses, the State and the City are liable to pay as damages to the part not taken the cost of demolishing buildings on the part not taken and the market value of these buildings, the buildings not having been taken or damaged in any way by the taking of the strip; (3) in affirming the judgment of the trial court based upon evidence of the market value of the land taken, 'not of the value of the land taken considered as a severed tract, but the value of the land when considered as a part of the larger tract from which it was taken.'; (4) in affirming the judgment of the trial court for an amount of damages which included an item of $4,500.00, which was duplicated in the testimony of Defendants' expert witness relating to the value of the strip taken and also in his testimony as to the damage to the land not taken, thus requiring the State and City to pay double damages; (5) in failing to hold that the trial court erred in admitting the testimony of the witness, Snyder, as to the value of the property remaining and in refusing to strike such testimony; (6) (7) and (8) in holding that the trial court had properly admitted evidence of profits, in holding that the objection to the admission of evidence as to profits was waived, and in holding that if it was error to permit evidence of income from the bulk wholesale warehouse, such error was not reversible error.

We have concluded to base our reversal of the judgments of the trial court and the Court of Civil Appeals upon the first two points. Since the ruling on these points will require that judgment be entered remanding the cause to the trial court for a new trial, we shall later in this opinion consider the remaining points of error which are not controlling here.

It is the contention of the Plaintiffs under points one and two that it was harmful error for the trial court to fail to sustain their motion in limine and their objections to the introduction of evidence of the market value of the two warehouses situated entirely on the land not taken and the cost of demolishing the two buildings. It was the theory of the Respondents that the testimony of the cost of removal of the buildings situated upon the land not taken was Not offered as an item of damages for which Respondents were to be compensated, but for the limited purpose of showing the market value of the remainder of the tract after the taking, and as bearing upon what was necessary to put the remaining property to 'its highest and best use * * *.'

Plaintiffs' motion in limine in regard to this and other related testimony, filed prior to the qualification of the jurors on voir dire, requested the court 'to instruct the defendants and attorneys to refrain from reference in any manner to the restoration of the premises owned by the Defendants necessary to put the Defendants in the same position that they were in prior to the taking and that no evidence of such restoration be admitted, and particularly that the deposition of Robert Yates taken in this cause be excluded.' The court overruled the motion in limine; but when Yates'...

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    ...and Carpenter 's corresponding special issues. See, e.g., City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex.1972); State v. Walker, 441 S.W.2d 168, 175 (Tex.1969); State v. Meyer, 403 S.W.2d 366, 371 (Tex.1966); City of Austin v. Cannizzo, 153 Tex. 324, 329-30, 267 S.W.2d 808, 812 (19......
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