State v. Windham

• Decision Date: 10 June 1992
• Docket Number: No. D-0619,D-0619
• Citation: 837 S.W.2d 73
• Parties: The STATE of Texas, Petitioner, v. Jerry WINDHAM, et al., Respondents
• Court: Texas Supreme Court

Page 73

837 S.W.2d 73

The STATE of Texas, Petitioner, v. Jerry WINDHAM, et al., Respondents.

No. D-0619.

June 10, 1992.

Rehearing Overruled Oct. 21, 1992.

Mark Heidenheimer, Dan Morales, Austin, for petitioner.

Vaughan E. Waters, A.W. Davis, Bryan, for respondents.

OPINION

CORNYN, Justice.

We decide in this condemnation action involving a partial taking whether the trial court erred by excluding evidence offered by the condemnor, controverting that offered by the landowner and admitted by the court, regarding the appropriate economic unit to be considered by the jury for determining the market value of the part taken. We hold that the trial court reversibly erred by excluding such evidence. Because the court of appeals affirmed the trial court's erroneous exclusion of the condemnor's evidence, 803 S.W.2d 340, we reverse the judgment of the court of appeals and remand this case for a new trial.

This dispute arose when the petitioner, the State of Texas acting through its Department of Highways and Public Transportation, condemned approximately two acres out of a nineteen acre tract belonging to respondents, Jerry Windham and Frank Thurmond (collectively referred to as "Windham"). The part taken consists of a 110 foot deep strip of Windham's land lying immediately adjacent to State Highway 6 to be used for widening the existing highway. The county court appointed a panel of special commissioners to determine the amount of adequate compensation to be paid by the State to Windham. See TEX.PROP.CODE § 21.014. The commissioners awarded Windham $60,250.00 in damages. See TEX.PROP.CODE § 21.042. Windham objected to the commissioners' award and appealed to the county court.

Prior to trial, Windham filed a motion in limine in which he stipulated to the State's right to condemn the 2.12 acres sought by the State and expressly waived his right to damages to the 16.88-acre remainder. However, Windham purported to unilaterally designate a larger strip of land, 200 feet wide and consisting of 3.84 acres immediately adjacent to the existing highway, as the economic unit upon which he contended the market value of the part taken should be based.

Windham contended the 2.12 acres taken by the State was configured in such a manner that it could not be considered a self-sufficient economic unit for commercial development purposes which, in Windham's opinion, was the highest and best use of his property. Windham argued that a 200 foot wide strip could be used for commercial development and thus, an additional 1.64 acres should be added to that sought by the State to comprise the appropriate economic unit to be considered by the jury in assessing the market value of the land condemned. Windham's motion in limine sought to exclude evidence of the market value of the 19-acre tract as a whole, and of the value of the condemned tract as a percentage of the whole, because he contended such an "averaging" method of valuation would not constitutionally compensate him for his loss.

The trial court granted Windham's motion in limine and ordered that all testimony regarding the market value of the part taken be based on the 3.84-acre tract designated by Windham as the appropriate economic unit. The court did not allow the State to present evidence to support its contention that the market value of the condemned land should be based on an economic unit consisting of the entire 19-acre tract, which it contended had a highest and best use of being held for investment purposes. Thus the only evidence of the appropriate economic unit to be used for valuation purposes that the jury heard was Windham's.

After the trial court excluded the State's proffered evidence of the appropriate economic unit, the State perfected a bill of exception consisting of the testimony of its expert, Clemo Ray. Ray's testimony disputed Windham's economic unit analysis; he testified instead that the entire 19 acres formed the appropriate economic unit based on the highest and best use of the property and he proffered his opinion of the market value of the condemned property based on this analysis. In Ray's opinion, the highest and best use of the land was to hold it for investment purposes because high density commercial development was not at that time economically feasible. Ray testified that because each acre of the 19 acres was of equal value, in his opinion, the land in close proximity to the highway was of equal value to that farther away from the highway. Moreover, Ray also disagreed with Windham's claim that the 3.84 acres adjacent to the highway comprised an independent economic unit because there was no current demand to subdivide the property into tracts of that size. Based on these premises, Ray appraised the value of the entire 19-acre tract at $0.77 per square foot. Because each acre had an equal value in his opinion, he valued the 2.12-acre part taken by the State at $0.77 per square foot for a total value of $71,000.00.

Ray was, however, allowed to present some expert testimony before the jury. His testimony was confined by the court's ruling on the motion in limine to a valuation based on the economic unit designated by Windham. Using comparable sales in the area as his method of determining market value, Ray testified that the value of the 3.84-acre tract was $1.00 per square foot. Experts testifying on behalf of Windham appraised the designated 3.84-acre tract at a figure between $1.50 and $2.00 per square foot. Ultimately, the jury found the market value of the 2.12-acre tract taken by the state to be $1.50 per square foot, or $138,520.50.

The trial court rendered judgment in accordance with the jury's verdict. ¹ The court of appeals affirmed the trial court's judgment based on its interpretation of Buffalo Bayou, Brazos & Colorado R.R. Co. v. Ferris, 26 Tex. 476 (1863), which construed the precursor of Article I, section 17 of our constitution. That section provides: "[n]o 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...." TEX. CONST. art. I, § 17. In Buffalo Bayou, this court construed the phrase "adequate compensation" in a virtually identical provision in the 1861 Texas Constitution to require the payment of money for the property taken without reference to any profit or advantage to any remaining property by construction of the improvements for which the property was taken. 26 Tex. at 488-89 (construing TEX. CONST. art. I, § 14 (1861, amended 1876)). We later reaffirmed this construction as applied to article I, section 17 of our current constitution in Dulaney v. Nolan County, 85 Tex. 225, 20 S.W. 70, 71 (1892) and State v. Carpenter, 126 Tex. 604, 609, 89 S.W.2d 194, 197 (1936).

In Carpenter ² we held that when only a part of the land is taken, the "just compensation" to which the owner is entitled consists of two elements: 1) the market value of the part taken, and 2) the damage to the remainder due to the taking and construction of the improvement for which it was taken. 89 S.W.2d at 197. Carpenter established the rule that the market value of the part taken is determined by considering it as "severed land" at the time it was condemned. Id. at 201. The court's primary concern was one of duplication of damages if the value of the part condemned is considered in relation to the whole property when damages to the remainder are also claimed. This is because when the market value of the part taken is considered as a part of the whole it "necessarily involve[s] the idea of damage to the remainder ...," a separate element of damages when sought. Id. at 196. (citing Jeffery v. Chicago & M. Elec. R.R. Co., 119 N.W. 879, 884 (Wis.1909)).

Thirty years later, in State v. Meyer, we recognized the right of the landowner in a condemnation case to waive his claim for damage to the remainder and proceed to trial solely on the issue of the market value of the land taken. 403 S.W.2d 366, 374 (Tex.1966). Therefore, when the landowner waives his claim for damage to the remainder, the trial court properly excludes evidence of any enhancement of value to the remainder because it is legally irrelevant to the issue of the market value of the part taken. Id. Further, Meyer expressly disapproved calculation of fair market value based on the "average" unit value of the entire tract when it is undisputed that the land taken has a higher unit value than the remainder at the time of its condemnation. Id. at 375.

When the severed portion of the land can be considered as an independent economic unit, the market value can be determined without reference to the remainder. See City of Tyler v. Brogan, 437 S.W.2d 609, 613 (Tex.Civ.App.--Tyler 1969, no writ). A different situation arises, however, when the portion of the land taken by the State, considered without reference to the remainder, cannot be considered an independent economic unit reflecting the highest and best use of the property and would thus deprive the land owner of adequate compensation for the part taken if considered solely as severed land. TEX. CONST. art. I, § 17; City of Richardson v. Smith, 494 S.W.2d 933, 936 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.). In such instances the market value must necessarily be determined by considering some portion or all of the remainder in order to construct an economic unit.

The State contends that it has a right to offer competing evidence of the appropriate economic unit for the jury to consider based on its opposing view of the highest and best use of the land. Windham did not seek damages to part or all of his remainder as such. To the contrary, he contends that the 2.12 acres the State took must be valued based on the per square foot value of a 3.84-acre economic unit he designated. ³ This, Windham asserts, is because the highest and best use of the property cannot be accomplished on the 2.12 acres of condemned property as...