Texas Power & Light Co. v. Hill

• Decision Date: 23 April 1930
• Docket Number: No. 7438.,7438.
• Citation: 27 S.W.2d 842
• Parties: TEXAS POWER & LIGHT CO. v. HILL et al.
• Court: Texas Court of Appeals

Page 842

27 S.W.2d 842

TEXAS POWER & LIGHT CO. v. HILL et al.

No. 7438.

Court of Civil Appeals of Texas. Austin.

April 23, 1930.

Rehearing Denied May 14, 1930.

Appeal from Travis County Court; G. S. Matthews, Judge.

Condemnation proceeding to secure a right of way by the Texas Power & Light Company against F. W. Hill and others. From an unsatisfactory award, the plaintiff appeals.

Affirmed.

Hart, Patterson & Hart, of Austin, for appellant.

R. B. Thrasher, of Austin, for appellees.

BLAIR, J.

This appeal is from a judgment for $723.25 for damages in a condemnation proceeding, wherein appellant condemned a 50-foot right of way or easement across two tracts of land owned by appellees, one containing 68 and the other 99 acres, upon which to erect and maintain its high power electric transmission line. With respect to the character and purpose of the right of way or easement, the court instructed the jury as follows: "That the essential elements of the right-of-way or easement consists of plaintiff's right to place and maintain its poles in and upon the land and to string or attach wires thereto and over the land, with the right to prohibit the erection of buildings and structures that will interfere with or endanger said transmission line, and to control all growth over 15 feet in height, that will endanger said transmission line, other than ordinary farm crops, on or within a space bounded by a line 25 feet on each side of and parallel to the center of the transmission line; and the right of ingress and egress to and from and over the strip of land described for the purpose of operating and maintaining said transmission line, but with no right to occupy any part of the surface of the land described, except the portion occupied by the poles and that portion necessary for ingress and egress in operating and maintaining the transmission line, and the right of defendants, F. W. Hill and wife, to use and pasture the above described land and to cultivate the same in ordinary farm crops, except in so far as the property is employed by plaintiff as above detailed is not interfered with by the condemnation."

The jury were further instructed that the measure of damages was the difference between the fair and reasonable market value of the strip of land taken for the easement, less its reasonable market value subject to the easement defined. "Market value" was defined and the following question propounded: "What was the market value of the land of defendants actually appropriated by plaintiff for the erection and maintenance of its transmission line at the time of the erection of such line?"

The jury answered the question, "$175.00 per acre." Appellant made no objection to the charge or the manner in which the issue of damages was submitted. It was agreed that there were 2.99 acres of land in the 50-foot strip condemned for the easement, and upon the jury's above answer, judgment was for appellee for $523.25. On motion for a new trial appellant objected to this judgment, because the land "actually appropriated" was not sufficient at $175 per acre to authorize the judgment for $523.25, it being contended that the land "actually appropriated" did not exceed 10 square feet around each pole. The contention is not sustained. The jury were instructed as above shown that the only land actually taken was that "occupied" by the poles. The charge further specifically described the character and purpose of the right of way or easement sought to be obtained by appellant. The jury were instructed that the measure of the damages resulting to appellees for this 50-foot strip for such right of way or easement purpose was the difference between its reasonable fair market value, less the reasonable fair market value of the strip after the use and occupancy by appellant as defined. The measure of damages as provided by article 3265, subds. 1 and 3, is the difference between the market value of the land immediately before and immediately after its appropriation for the purpose for which it is condemned; and, in effect, the jury so understood the charge and arrived at a fair and reasonable amount of damages as disclosed by the evidence. This conclusion is sustained by the case of Tex. Power & Light Co. v. Jones (Tex. Civ. App.) 293 S. W. 886 (writ of error refused).

Appellant insists that the recent case of Tex....