State v. Wilemon

• Decision Date: 07 July 1965
• Docket Number: No. A-10589,A-10589
• Citation: State v. Wilemon, 393 S.W.2d 816 (Tex. 1965)
• Parties: STATE of Texas et al., Petitioners, v. A. E. WILEMON et al., Respondents.
• Court: Texas Supreme Court

Page 816

393 S.W.2d 816

STATE of Texas et al., Petitioners, v. A. E. WILEMON et al., Respondents.

No. A-10589.

Supreme Court of Texas.

July 7, 1965.

Rehearing Denied Oct. 6, 1965.

Henry Wade, Dist. Atty., Dallas, Jerome E. Dawkins, Don Stodghill, Asst. Dist. Attys., for petitioners.

Bonney & Wade, Robert A. Stripling, Jr., Dallas, for respondents.

WALKER, Justice.

This is an eminent domain proceeding in which the Court of Civil Appeals has held that a statement made by the trial judge during argument of counsel constituted a prejudicial comment on the weight of the evidence. The judgment of the County Court at Law was reversed and the cause remanded for a new trial. 385 S.W.2d 573. We have concluded that the error asserted was not properly preserved in the trial court.

The proceeding was instituted by the State of Texas and County of Dallas, petitioners, to condemn an easement for highway purposes upon and across slightly less than one acre of land, which is about one-half of the tract owned by A. E. Wilemon et al, respondents. The special commissioners fixed the damages at $7,000.00, and the amount of the award was deposited by petitioners and withdrawn by respondents. Respondents perfected their appeal to the County Court at Law and admitted petitioners' right to condemn. The jury found that the value of the property condemned was $1,215.00, and that there was no diminution in the value of the remainder of respondents' tract as a result of the taking. Judgment was entered on the verdict vesting in petitioners an easement on the land described in the petition and decreeing that they recover from respondents the $5,785.00 difference between the award of the special commissioners and the damages assessed by the jury.

The comment of the trial judge which led to a reversal by the Court of Civil Appeals related to the testimony of Joseph R. Smith. Smith was the only witness offered by petitioners who gave any evidence bearing on the value issues. He stated that in his opinion the property condemned was worth $1,215.00, and that the remainder of respondents' tract was not damaged by the taking. The jury obviously accepted his testimony and based its findings thereon.

On direct examination, Smith testified that there are three generally accepted methods of determining the value of real estate, and that each has its place depending upon the type of property being appraised. These are: (1) the income approach which, according to the witness, is highly desirable where the net income can be computed over a period of time with such certainty that it partakes of the nature of an annuity; (2) the cost approach, which the witness state could not properly be used in the present case; and (3) the market value approach, i.e. the price for which similar property suitable for the same use might be purchased. Smith stated that he had used the third method, and testified in detail regarding sales of comparable land in the area on which his appraisal was based.

At the time of the taking, the land was leased by respondents to a tenant who used the same for a wrecking yard. The rent was $75.00 per month, but the other terms of the lease are not disclosed by the record. Smith was asked on cross examination whether the land taken would be worth only $1,215.00 if it was rented for $75.00 a month. He again stated that before an opinion as to value could be based on income, it was necessary to have some assurance that the income would continue over a relatively long period of time. The witness also explained that in this instance the disparity between the contract rent and the amount for which similar property could be leased was so great that it was unlikely the property would continue to yield $75.00 a month after the end of the current lease. For that reason he disregarded the monthly rental received by respondents in making his appraisal.

In arguing the...