Texas Midland R. Co. v. Burt

• Citation: 243 S.W. 669
• Decision Date: 16 June 1922
• Docket Number: (No. 2591.)
• Parties: TEXAS MIDLAND R. CO. v. BURT.
• Court: Court of Appeals of Texas

243 S.W. 669

TEXAS MIDLAND R. CO. v. BURT.

(No. 2591.)

Court of Civil Appeals of Texas. Texarkana.

June 16, 1922.

Rehearing Denied July 1, 1922.

Appeal from Hunt County Court; Olin P. McWhirter, Judge.

Condemnation proceedings to secure a right of way by the Texas Midland Railroad Company against W. A. Burt. From judgment for damages for defendant, plaintiff appeals. Affirmed.

Terry & Brown, of Terrell, McMahon & Dohoney, of Greenville, and Cocke & Cocke, of Dallas, for appellant.

Clark & Sweeton, of Greenville, for appellee.

HODGES, J.

This appeal is from a judgment against appellant for damages in a condemnation proceeding to secure a right of way over the land of the appellee. In the original hearing the commissioners awarded as damages the sum of $7,995.60. Appellant prosecuted an appeal to the county court. The petition for condemnation described the land owned by the appellee as a farm consisting of 204.86 acres. It seeks to condemn for a right of way a strip across the farm 100 feet wide, covering an area of 10.24 acres. In his answer the appellee pleaded that his farm included more than 250 acres in one body. He claimed that the proposed railway line would impair the value of the land not taken to the extent of more than $30 per acre.

The case was submitted on special issues. The jury found that the cash market value of the land actually taken was $235 per acre; that the remainder of the land owned by the appellee would be damaged at the rate of $25 per acre as a result of the construction of the proposed railway. Upon those findings the court entered a judgment in favor of the appellee for $8,734.

The appellee was permitted to prove that his farm, which he occupied as a homestead, consisted of 255 acres, or 50 acres more than was included in the petition of condemnation. Appellant objected to that proof upon the ground that in ascertaining the damages which the appellee might claim to land other than that actually condemned, the court could not consider any portion of the farm not described in the petition of condemnation. The objection was we think correctly overruled. Article 6506 of the Revised Civil Statutes provides that if the company and the owner cannot agree upon the damages, it shall be the duty of the company to state in writing the real estate and property to be condemned, the purpose for which the same is to be used, the name of the owner and his residence, etc. It thus appears that the condemning corporation is not required by the statute to describe any land except that which it desires to take for right of way purposes. It cannot by a voluntary description of land not to be condemned restrict the right of the owner to damages for injuries to his other land. Kirby v. Railway Co., 39 Tex. Civ. App. 252, 88 S. W. 281; Parker v. Railway Co., 84 Tex. 333, 19 S. W. 518. Article 6520 of the Revised Civil Statutes provides that —

"When only a portion of a person's real estate is condemned, the commissioners shall estimate the injuries sustained and the benefits received thereby by the owner as to the remaining portion of such real estate, * * * and shall assess the damages accordingly."

In this instance the appellee had a right to recover for all injuries which resulted to his entire farm from the construction of the railway line across his land.

The court gave the following instruction upon the measure of damages:

"The cash market value of the strip of land taken by the railroad is not its value when considered by itself alone, but its value when considered as a part of the tract or tracts of land of which it forms a part. Improvements and growing crops upon land are in law considered as a part of the land itself, and not separately. Therefore in arriving at the value of the land taken by the railroad you shall take this fact into consideration."

At the instance of the appellant this additional instruction was given:

"You are instructed that in considering the cash market value of the strip of land taken by the railroad, you will exclude from such value whatever you may believe from the evidence defendant's land has been added to in value by the houses, barns, and outhouses and other similar improvements, and only consider its value in connection with its being a part of the tract or tracts of land...