Wilemon v. State

• Decision Date: 04 December 1964
• Docket Number: No. 16424,16424
• Parties: A. E. WILEMON et al., Appellants, v. STATE of Texas et al. Appellees.
• Court: Texas Court of Appeals

Page 573

385 S.W.2d 573

A. E. WILEMON et al., Appellants, v. STATE of Texas et al. Appellees.

No. 16424.

Court of Civil Appeals of Texas, Dallas.

Dec. 4, 1964.

Rehearing Denied Jan. 8, 1965.

Bonney & Wade, Dallas, for appellants.

Henry Wade, Dist. Atty., A. D. Jim Bowie, Ted Z. Robertson, Don R. Stodghill and Jerome E. Dawkins, Asst. Dist. Attys., Dallas, for appellees.

BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

This condemnation case involves the taking of 32,892 square feet of land, approximately half of a tract belonging to the appellants A. E. Wilemon, Bobby Wilemon and F. O. Wilemon, for highway purposes. The special commissioners assessed the damages to the landowners at $7,000 and they, being dissatisfied, duly objected and demanded jury trial. However, long before the trial they withdrew the amount awarded to them, pursuant to the provisions of Article 3268, Vernon's Ann.Tex.Civ.St. The jury having found the value of the land taken to be $1,215, with no decrease in the value of appellants' remaining land, the court rendered judgment for the condemnors, State of Texas and County of Dallas, for the land condemned and for $5,785, the excess of the commissioners' award over the verdict. We have concluded that this judgment must be reversed and the cause remanded.

By their first point of error on appeal appellants complain of error in overruling their plea in abatement, which asserted lack of jurisdiction. This was on the ground that the description of the land taken in fatally defective in that the field notes used in the proceedings, beginning with the original petition and ending with the judgment, do not actually close. Appellants rely on Parker v. Ft. Worth & D. C. Ry. Co., 84 Tex. 333, 19 S.W. 518, and Wooten v. State, 142 Tex. 238, 177 S.W.2d 56. Those cases hold that if the defect in the description is of such a nature as to prevent an identification of the same on the ground, the court is without jurisdiction to condemn land.

However, it is well settled that when the description is sufficiently certain to enable one to identify and locate the land by going on the ground, a false and contradictory element of description is harmless, Roberts v. County of Robertson, Tex.Civ.App., 48 S.W.2d 737, wr. ref., and a description which will enable one to identify the property, when aided by inquiry based upon information given by the instrument, is sufficient. Coppard v. Glasscock, Tex.Com.App., 46 S.W.2d 298, 300. Mathematical certainty is not required, only reasonable certainty. 14-B Tex.Jur., Deeds, p. 643, Sec. 184.

Appellees established by undisputed testimony that, although the field notes do not actually close, they were sufficient to enable one to identify the property on the ground. In the light of the foregoing rules we hold that the court did have jurisdiction, and that appellants' plea in abatement was properly overruled. The first point of error is overruled.

The second point of error complains that the trial court refused to permit appellants' expert witness O. R. 'Chick' McElya (who testified at the hearing of the plea in abatement) also to testify before the jury that the land taken was not identifiable from the field notes in the petition, making it impossible to compute the area of the land contained therein. Having held above that there was no error in overruling the plea in abatement involving the same testimony, we now hold that the proffered testimony was immaterial and that there was no error in excluding it. Accordingly, the second point is overruled.

Appellees having been permitted to establish by cross-examination of appellant F. O. Wilemon that he had paid only $5,000 for the entire tract of land in 1957, whereas he had testified that in his opinion it was worth several times that amount at the time of taking in 1961, appellants' counsel on redirect examination, in an effort to offest this damaging testimony, asked him whether he paid the $5,000 after taking into consideration a defect in the title to the land. Objection to this was sustained. However, immediately thereafter the witness was permitted without objection to testify that in addition to paying the $5,000 for the property he also had to pay for a title policy and to pay his attorneys to clear the title. He was then asked whether he had had to 'undergo all of the expense and the trouble to actually clear the title,' and upon an affirmative answer being given appellees moved to strike the same 'unless he brings some sort of itemized list to show these expenses were reasonable in the market and so forth,' and because there was no predicate. This motion was sustained.

Appellants in their third point of error complain of both rulings. Although the point is multifarious, we shall nevertheless consider it. That part of the point attacking the first ruling is overruled because there is no bill of exception showing what the answer of the witness would have been had the objection not been sustained; we cannot determine the admissibility of evidence without knowing what that evidence would have been. Gulf, C. & S. F. Ry. Co. v. Locker, 78 Tex. 279, 14 S.W. 611; Bradford v. Magnolia Pipe Line Co., Tex.Civ.App., 262 S.W.2d 242, 245, no wr. hist. The entire point is overruled because the rulings complained of cannot be said to have probably caused the rendition of an improper judgment. Rule 434, T.R.C.P. It was established by other testimony that there was some sort of flaw in the title, that appellants employed attorneys to clear the title, and that they also paid a $250 real estate commission and bought a title policy. We think appellants thus probably got before the jury the substance of what they hoped to prove by the excluded evidence. The third point is overruled.

The fourth point complains of the admission in evidence of an aerial photograph of the subject property and the surrounding neighborhood over appellants' objection that the photograph was made a year and a half after the date of taking and after a big rain. The subject property is designated on the photograph and appears to be on or near the edge of a large area apparently inundated with water. We think this objection went to the weight rather than the admissibility of the evidence. Bilbrey v. Gentle, Tex.Civ.App., 107 S.W.2d 597, wr. dism. Moreover, another aerial photograph, made at the same time and showing the same property and the same flooded neighborhood, although from a different angle, was admitted over the same objection, and no complaint is made thereof in this court. Numerous other photographs showing flood water covering the property and surrounding areas were admitted in evidence without objection. The error, if any, was harmless, Rule 434, T.R.C.P., and the fourth point is overruled.

By their fifth, sixth, seventh, ninth and tenth points of error appellants complain of the exclusion by the court of certain testimony proffered by appellants. We are unable to determine the admissibility thereof because appellants have not brought forward by proper bills of exceptions what these witnesses would have testified to had they been permitted to do so. Any error in excluding the testimony has been waived and nothing is presented to this court for review. 41-B, Tex.Jur., Trial--Civil Cases, p. 196, Sec. 167; Gulf, C. & S. F. Ry. Co. v Locker, supra; Bradford v. Magnolia Pipe Line Co., supra. These points are overruled.

By their eighth point of error the appellants complain that the trial court erroneously refused to allow their expert witness Russell E. Shutt to show to the jury the location of the comparable sales used by him on a map that had been introduced in evidence by appellees. The record shows that the witness was asked to locate the property on the map in a redirect examination by appellants' counsel. Appellees objected on the ground that it was not rebuttal of anything brought out on cross-examination, which objection was sustained. Appellants argue that the cross-examination of this witness had placed him in a bad light and that they were entitled on redirect examination to try to remove the unfavorable impression. Whether it would have had that effect to permit the witness to point to a couple of places on a map we are of course unable to say; all we can say is that appellants have not discharged the burden resting upon them in this court to demonstrate that the trial court abused its discretion or that the error, if any, was such as probably caused the rendition of an improper judgment. MrCormick & Ray, Texas Law of Evidence, Vol. 1, p. 477, Sec. 622; Texas Employers Ins. Ass'n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, 328; Rule 434, T.R.C.P. We overrule the eighth point.

In their eleventh and twelfth points of error appellants assert that the finding by the jury of the value of the land taken at $1,215 is against the greater weight of the evidence, for which reason it was error to grant appellees' motion for judgment and to overrule appellants' motion for judgment non obstante veredicto. We have carefully read the entire statement of facts and, finding these points to be wholly without merit, overrule the same. It would add nothing to the jurisprudence of the State for us to detail or even summarize the evidence on both sides on this subject. We cannot say that the expert testimony...