Sullivan v. Missouri, K. & T. Ry. Co. of Texas

• Decision Date: 14 May 1902
• Citation: 68 S.W. 745
• Parties: SULLIVAN v. MISSOURI, K. & T. RY. CO. OF TEXAS.
• Court: Texas Court of Appeals

68 S.W. 745

SULLIVAN v. MISSOURI, K. & T. RY. CO. OF TEXAS.

Court of Civil Appeals of Texas.

May 14, 1902.

Appeal from Bexar county court; R. B. Green, Judge.

Proceeding to condemn a right of way for the Missouri, Kansas & Texas Railway Company of Texas across the lands of D. Sullivan. From the judgment assessing the damages, Sullivan appeals. Reversed.

J. C. Sullivan and Hines & Taliaferro, for appellant. F. C. Davis and Denman, Franklin & McGown, for appellee.

NEILL, J.

This is a proceeding to condemn certain property of appellant to appellee's use as a right of way for its railroad. There is no controverted issue, except as to the damages, which were assessed by the jury upon the trial in the county court at $2,100. The property sought to be condemned is a strip 100 feet in width, aggregating 5½ acres, running through a tract of land owned by appellant, a small part of which is situated within the corporate limits of the city of San Antonio; the main part lying without, but near, such corporate limits. Besides the appellant's loss of the property actually condemned and taken for appellee's use, the undisputed evidence shows that the value of the remaining property will be materially diminished by the construction and operation of appellee's railroad through it on the part taken for such use. Upon the extent of this diminution in value the evidence is conflicting, the witnesses differing in their testimony and varying greatly as to the value of the land immediately before and after its appropriation. The land was not used for agricultural purposes, but had been subdivided into blocks and lots, with the evident design of selling them for residence property, for the purpose of which the evidence tends to show it was best adapted.

The first assignment of error complains of the failure of the court to set aside, upon motion of appellant, its order appointing commissioners to assess the damages. The order was made upon the application of the appellee, and filed with the county judge, as is provided for by article 4447, Rev. St. It appears from the evidence heard by the court on the motion to vacate the order that the parties had, prior to the filing of the application, failed to agree upon the commissioners, and that they would not agree upon them in the event the order of their appointment was set aside. Therefore, as the court, upon a proper application, had, in compliance with article 4448, Id., appointed three disinterested freeholders of Bexar county as special commissioners to assess the damages, no reason or authority was shown by the motion for annulling the order of their appointment.

Before considering and passing upon the remaining assignments of error, we will state, as purtenant to them, the rule and principles applicable to estimating damages in cases like this, in which only a part of a tract is condemned. The measure of compensation and damages in such cases is the market value of the land taken for the right of way, and the damages to the remainder by reason of the railroad running through it, less any benefits that are peculiar to the tract of land, arising from the construction and operation of the road through it. In other words, when a part of a man's land is taken under condemnation proceedings, the measure of damages is the difference between what was a fair market value of the whole tract or property before, and its fair market value after, the appropriation, in view of the usage to which the land condemned should thereafter be applied. Railway Co. v. Ruby, 80 Tex. 172, 15 S. W. 1040; Dallas T. R. & Union Depot Co. v. Mosher Mfg. Co. (Tex. Civ. App.) 60 S. W. 893; Lewis, Em. Dom. (2d Ed.) § 464; Braun v. Railroad Co., 166 Ill. 434, 46 N. E. 974; Railway Co. v. Stickney, 150 Ill. 362, 37 N. E. 1098, 26 L. R. A. 773; St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co. Company (Mo. Sup.) 61 S. W. 300. If the situation, quality, and character of the property are such as make it peculiarly adapted to a certain purpose, and give it an especial value for that purpose, then damages should be assessed with a reference to its adaptability to that purpose. Elliott, Roads & S. 195. The owner is entitled to have his land estimated at its fair market value, and is not restricted as to the amount it would probably bring at a forced sale. Where the public or railroad company, through the exercise of the right of eminent domain, compels him to part with his property, the public or railroad must pay for it what it would bring in the market with fair and reasonable time and opportunity for offering it for sale. 2 Dill. Mun. Corp. § 624. Merely conjectural or speculative damages cannot be awarded, but, where a loss proximately results from the use to which the property is applied, it should be taken into account in the award of compensation. "Value is not to be estimated solely from the use made of the land at the time of the seizure, but the use to which it is adapted may properly be taken into account in determining what would justly compensate the owner of the land seized, since the use to which the property is adapted may exert an important influence upon its market value. The estimate of value should be based on the use which men of ordinary prudence and sagacity would make of the land. Future contingent value cannot be considered, and yet it is not improper to consider the surroundings of the property, and the probability that a use may reasonably be made of it more profitable than that to which the owner has devoted it." Elliott, Roads & S. 202.

The appellant asked the court to instruct the jury that, in the appraisement of the land to be taken, they could consider the present condition of the locality as to business and demand for property, and also any increase or development thereof that could be expected in the immediate future. The refusal of the court to give it is assigned as error. The rule announced by the requested charge would not permit the ascertainment of value on other than existing conditions, or on speculative or merely...