State v. Walker

Decision Date28 May 1968
Docket NumberNo. 7859,7859
Citation430 S.W.2d 13
PartiesThe STATE of Texas et al., Appellants, v. G. A. WALKER, Sr., et al., Appellees. . Texarkana
CourtTexas Court of Appeals

Hart & Hart, Austin, Gaines Baldwin, City Atty., Marshall, for appellants.

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

DAVIS, Justice.

A condemnation case. The State of Texas and The City of Marshall, Texas, appellants, filed a claim against G. A. Walker, Sr., and wife, Lucy H. Walker, G. A. Walker Oil Company, Inc., J. B. Watson, Jr., O. D. Huffman and Phillips Petroleum Company, Inc., appellees, for a 'partial taking' of a certain tract of land situated in Harrison County, Texas, and described in appellants' 'Proceeding in Eminent Domain' as follows:

'County: Harrison

Highway: US Hwy. #59

Project Limits: US Hwy. 80 S to

Jct. with St. Hwy. 43 at Five Notch Road

Account: RW 63--1--17

Field Notes for Parcel #75

Name: G. A. Walker

0.207 acres, more or less, of land same being out of and a part of that certain Outlot 66A, out of the Peter Whetstone Survey in Harrison County, Texas, which Outlot 66A, a 0.5 acre tract was conveyed to G. A. Walker by deed dated March 11, 1941 and of record in Volume 241, Page 615, Deed Records of Harrison County, Texas, which 0.207 acres is more particularly described by metes and bounds as follows:

BEGINNING at a point on the present existing East right of way line of US Hwy. 59 and State hwy. 43, hereinafter referred to as 'the highway', this point being the existing southwest corner of the G. A. Walker tract, said point being 120 feet, N 87 30 W from an iron pin for the said tract's southeast corner, said point being 25 feet at right angles from highway survey Station 183 58.93;

THENCE: N 2 15 E, 180.00 feet along the said present existing East right of way line to a point in the North boundary of the Walker tract, this point being the existing Northwest corner of the said tract, said point being 25 feet at right angles from highway survey Station 185 38.93;

THENCE: S 87 30 E, 50.00 feet along the said tract's North boundary to a point on the proposed East right of way line of the highway, this point being 75 feet at right angles from highway survey Station 185 38.71;

THENCE: S 2 15 W, 180.00 feet along the proposed East right of way to a point in the South boundary of the said tract, this point also being in the North boundary of East Houston Avenue, said point being 75 feet at right angles from highway survey Station 183 58.71;

THENCE: N 87 30 W, 50.00 feet along the South boundary of the said tract to the place of beginning.

The above described strip contains 0.207 acres, more or less, of land out of the G. A. Walker 0.5 acre tract in Outlot 66a.'

In addition to the land taken, title was also taken to two masonry buildings (one used for a Phillips 66 Service Station, and, one used for a cafe) together with all the improvements belonging to G. A. Walker, Sr. The other improvements include a canopy, 280 sq. ft. of asphalt, 3,600 sq. ft. of concrete drive, 100 sq. ft. concrete walk, 1 single pole hoist, 1 double pole hoist and 4--1,000 gallon gasoline tanks.

On the land remaining after the partial taking, there was situated one concrete block warehouse, one sheet iron building, 2--2,000 gallon gasoline storage tanks and 2--6,000 gallon gasoline storage tanks. There was evidence introduced to show that these buildings and gasoline tanks would have to be removed in order to put the remaining property to its highest and best use.

There was a strip of land 180 feet long, North and South, and 50 feet East and West that was completely severed along U.S. Hwy. #59, for the purpose of widening Hwy. 59. There was left a strip of land 180 feet by 100 feet.

The case was tried before a jury. There was conflicting evidence offered. It is easy to understand why the jury formed its opinion in favor of the appellees. There were only three special issues submitted to the jury. The special issues and the jury's answers read as follows:

'SPECIAL ISSUE NO. 1

From a preponderance of the evidence, what do you find was the market value of the 0.207 of an acre strip of land taken by the City of Marshall and State of Texas for highway purposes at the time it was taken, considered as severed land?

Answer in dollars and cents.

Answer: $47,652.00.

'SPECIAL ISSUE NO. 2

From a preponderance of the evidence, what do you find was the market value of that part of defendants' tract of land not taken; that is, the entire tract of land less the 0.207 acre strip immediately before the 0.207 acre strip was taken for highway purposes?

Answer in dollars and cents.

Answer: $49,350.00.

'SPECIAL ISSUE NO. 3

Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by the defendants in common with the community generally and not peculiar to them and connected with their ownership, use and enjoyment of the particular tract of land across which the strip of land has been condemned, and taking into consideration the uses to which the said strip of land taken is to be subjected or may be subjected, what do you find from a preponderance of the evidence was the market value of that part of defendants' tract of land not taken immediately after the taking of the strip for highway purposes?

Answer in dollars and cents.

Answer: $30,500.00.'

The appellants have perfected their appeal and bring forward 18 points of error.

It seems by their points of error, and their argument, appellants do NOT desire to permit the appellees to use the remainder of their property for its highest and most economic use after the partial taking of the small tract, or lot, of land.

Appellants take the position that the trial court erred in overruling their two motions in limine seeking the suppression of certain evidence concerning the restoration of the premises owned by appellee Walker necessary to put Walker in the same position he was in prior to the taking in so far as the market value of the part not taken was concerned, and the suppression of the evidence as to the proceeds from any business or businesses conducted thereon by admitting such evidence in so far as the part of the property NOT taken was concerned. The record is wholly devoid of any such ruling by the trial judge.

There was evidence offered that showed the total value of all the land involved, including all improvements, to be $92,502.00. There was evidence offered to show the market value of the part that was taken, together with improvements, as severed land, to be $47,652.00. There was evidence offered to show the market value of the remainder, before the partial taking, to be $49,850.00. There was evidence offered to show the market value of the remainder, after the partial taking, to be $30,500.00. There was evidence offered to show the damage to the remainder to be.$19,850.00. This testimony was offered by a witness by the name of D. H. Snider, III. He was thirty-six (36) years of age, had been trading and trafficking in real estate all of his life, and having had a Real Estate Broker's License since 1959. He had been a City Commissioner, had built at least one hundred commercial and residential structures in and around the City of Marshall in recent years, which involved buying some real estate and then developing it, and on other occasions, just on property owned by others. Two of the witnesses that testified for appellants, said that they had talked to Mr. Snider about the market value of the land being condemned. This, Mr. Snider, emphatically denied. The witnesses for appellants were not recalled to the stand. Mr. Snider testified that he went upon the land on more than one occasion, that he compared the market value of the land with comparable sales within the vicinity of the tract that was being condemned, and from those factors, along with his experience, he formed an opinion as to the market value of the severed tract that was being taken and the market value of the remainder, after the severance.

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1 cases
  • State v. Walker
    • United States
    • Texas Supreme Court
    • May 21, 1969
    ...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 ent......

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