Thurow v. City of Dallas

• Decision Date: 19 July 1973
• Docket Number: No. 18125,18125
• Parties: Donald R. THUROW et al., Appellants, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 347

499 S.W.2d 347

Donald R. THUROW et al., Appellants, v. CITY OF DALLAS, Appellee.

No. 18125.

Court of Civil Appeals of Texas Dallas.

July 19, 1973.

Rehearing Denied Sept. 24, 1973.

Wm. Andress, Jr., Andress, Woodgate & Lodewick, Dallas, for appellants.

Alex Bickley, City Atty., Leigh Bartlett, Asst. City Atty., Dallas, for appellee.

GUITTARD, Justice.

In this condemnation suit the landowners complain that the trial court erred in submitting to the jury the issue of value of the property on August 12, 1971, when the city deposited in court the amount awarded by the special commissioners, rather than in 1964, when the 'Crosstown' street-widening project was announced, and in excluding evidence bearing on its value at the earlier time. We hold that the date of deposit was the correct time of valuation because there is no evidence that any earlier action by the city amounted to a taking or compensable damaging of the property. We also find no error in the court's admission of certain testimony of the city's appraiser, now complained of as hearsay.

The general rule is that announcement of a projected public improvement, together with preparation of plans and maps showing the property in question as within the limits of the project, without any actual interference with the owner's use, does not constitute a taking or compensable damaging, even though it may reduce marketability as a practical matter. City of Houston v. Biggers, 380 S.W.2d 700 (Tex.Civ.App.--Houston, 1964, writ ref'd n.r.e.), cert . denied 380 U.S. 962, 85 S.Ct. 1105, 14 L.Ed.2d 153 (1965). This rule is recognized in cases cited by the landowners, which hold that in extraordinary circumstances an unequivocal manifestation of intention to take the property, followed by work on the project or other action which actually interferes with the owner's use and enjoyment, may establish a taking or damaging requiring determination of the value at an earlier date. See Becos v. Masheter, 15 Ohio St.2d 15, 238 N.E.2d 548 (1968); In re Appropriation for Highway Purposes of Lands of Goldflies Storage & Moving Co., 18 Ohio App.2d 116, 247 N.E.2d 315 (1969); Cleveland v. Hurwitz, 19 Ohio Misc. 184, 249 N.E.2d 562 (P.Ct.1969); Cf. Urban Renewal & Community Development Agency v. Monsky, 436 S.W.2d 77 (Ky.1969).

We need not determine whether those authorities would be followed in Texas, ¹ since we find no evidence here of extraordinary circumstances which would justify an earlier valuation. There is evidence that the proposed 'Crosstown' project became known in the early 1960's, but none as to whem the city council officially adopted a plan including the Thurow property involved in this suit. Donald Thurow testified that he first heard about the project late in 1963, and that when he attempted to check it out at the city hall several months later, he was shown drawings which included his property in the project. He said he made inquiries of the city from time to time as to when they were actually going to take his property, and was repeatedly advised that it would be in approximately six months, but actually it was seven years. The extraordinary circumstance on which the Thurows rely to establish the earlier date of valuation is the city's refusal to grant them a building permit to complete their projected improvements on the property, which was an old residence converted into six apartments. However, this refusal was not established by proof. Thurow testified that he was advised concerning the status of building permits on the property when he was shown the city's plans, but an objection was sustained to a question concerning notations on the plans regarding building permits, and the record contains no evidence of the city's policy in this respect, or that the Thurows ever applied for a permit. Neither is there any showing of a valid ground on which a permit could have been denied. Wrongful denial of a building permit does not in itself constitute a taking or form the basis for an action for damages, since in such a situation the owner has a remedy by mandamus or injunction against the city officials. Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.Civ.App.--Houston, 1960, writ ref'd n.r.e.), appeal dism'd364 U .S. 474, 81 S.Ct. 242, 5 L.Ed.2d 221 (1961).

There is evidence that the character of the neighborhood deteriorated as a result of announcement of the project, and the city's appraiser admitted that property directly in path of such a project can only be sold to speculators who hope to get a better deal from the city. We hold that depression in market value resulting from the project does not require valuation at a date earlier than the actual taking. The value to be found by the jury is the hypothetical price which the property would bring in a voluntary sale on the date of taking, unaffected by the project. Thus the property must be valued without including any enhancement resulting from the project. Fuller v. State, 461 S.W.2d 595 (Tex.1970). The same reasoning applies in favor of the landowner to require valuation without any depression resulting from the project. State Road Dep't v. Chicone, 158 So.2d 753 (Fla.1963); Congressional School of Aeronautics v. State Roads Comm'n, 218 Md. 236, 146 A.2d 558 (1958); City of Buffalo v. J. W. Clement Co., 28 N . Y.2d 241, 321 N.Y.S.2d 345, 269 N.E.2d 895 (1971); 4 Nichols' Law of Eminent Domain § 12.3151(5) (Rev.3d ed. Sackman 1971, and Supp.1973).

We have before us no objection that the city's appraiser was permitted to testify to a valuation depressed by the threat of condemnation, ² and neither do w...