Zinsmeyer v. State, 04-81-00239-CV

• Decision Date: 09 February 1983
• Docket Number: No. 04-81-00239-CV,04-81-00239-CV
• Citation: 646 S.W.2d 626
• Parties: Emil Edward ZINSMEYER and wife, Margaret Zinsmeyer, Appellants, v. STATE of Texas and County of Medina, Appellees.
• Court: Texas Court of Appeals

Page 626

646 S.W.2d 626

Emil Edward ZINSMEYER and wife, Margaret Zinsmeyer, Appellants, v. STATE of Texas and County of Medina, Appellees.

No. 04-81-00239-CV.

Court of Appeals of Texas San Antonio.

Feb. 9, 1983.

James L. Branton, San Antonio, Clyde H. Haak, Hondo, for appellants.

Hunter Schuehle, Hondo, for appellees.

Before BUTTS, TIJERINA and DIAL, JJ.

OPINION

TIJERINA, Justice.

This is a condemnation suit brought by the State of Texas and the County of Medina (hereinafter appellees) to acquire property two miles east of Castroville, Texas.

Prior to January 25, 1979, the date of the taking in question, Emil and Margaret Zinsmeyer (hereinafter appellants) owned a 1.308 acre tract of land located on Highway 90, east of Castroville. This property was conveyed to appellant Emil Zinsmeyer in a warranty deed executed by his father, William Zinsmeyer. Included in the deed was an easement granting to appellants the use of a water well located on William Zinsmeyer's nearby highway frontage property.

In January, 1979, appellees began condemnation proceedings to acquire land paralleling Highway 90 for the purpose of expanding the highway. The highway expansion project affected the property of several landowners, including .392 acres of appellants' land, and that portion of William Zinsmeyer's land upon which the water well was located. This appeal is concerned only with the condemnation proceedings brought to acquire the property owned by appellants.

The Special Commissioners awarded appellants $3,500.00 as compensation for the value of the land taken and for damages caused by the taking to the remainder of appellants' property. The Award of the Special Commissioners specifically states,

The parties hereto having agreed and having so requested, the undersigned commissioners have assessed damages flowing from the loss of the use of a well on the lands of William Zinsmeyer and of water easements on the lands of other landowners as damages to the remainder of defendant's land.

The parties have agreed that a final judgment herein shall include such water rights and easements, whether or not they be located on defendant's land.

Appellants timely filed their objections to the award and trial was to a jury. At the beginning of the trial, the parties stipulated that (1) prior to the taking, the total value of the remaining land and improvements thereon was $75,140.00; and (2) the only issue for the jury was the value of the remaining land and improvements after the taking. In answer to the sole special issue submitted, the jury found that the fair market value of appellants' remaining property after the taking was $75,140.00. The trial court entered judgment in accordance with the verdict, finding the damages to the remaining property to be zero. Appellants have perfected appeal to this Court and now raise six (6) points of error.

By their first point of error, appellants maintain the trial court erred in refusing to give a requested special instruction advising the jury not to consider any payment made to William Zinsmeyer for the taking of his water well. Appellants contend in their second point of error that the trial court erred in refusing to give a requested special instruction advising the jury that the water easement described in the warranty deed is a property right owned by the appellants which may not be sold or conveyed by anyone else. In its charge to the jury, the court defined the term "property" as including a legal right of access or easement to a water well, but went no further in detailing the rules of compensation or damages applicable to the particular facts of this case. Appellants argue that the failure to give the additional instructions erroneously led the jury to believe that appellants had already been compensated for loss of the water easement when William Zinsmeyer, who was not a party to the instant condemnation proceeding, was paid for his property.

Both the United States Constitution and the Texas Constitution prohibit governmental entities from taking any property without payment of adequate compensation. U.S. Const. amend. XIV; Tex. Const. art. I, § 17. The owner of any legal right or interest in land must therefore be adequately compensated when the land is taken. See McLennan County v. Sinclair Pipe Line Co., 323 S.W.2d 471, 473 (Tex.Civ.App.--Waco 1959, writ ref'd n.r.e.). Since an easement is an interest in land, an easement owner is entitled to compensation if the easement is extinguished by a taking. Harris County Flood Control District v. Shell Pipeline Corp., 578 S.W.2d 495, 497 (Tex.Civ.App.--Houston [1st Dist.], aff'd, 591 S.W.2d 798 (Tex.1979)). When property sought to be acquired in a condemnation proceeding is subject to a lease or other legal interest, such as an easement, the general procedure is for the fact-finder to determine the market value of the entire property as though it belonged to one person. The fact-finder then apportions the market value between the fee owner and the other parties having an interest in the property. See Urban Renewal Agency v. Trammel, 407 S.W.2d 773, 774 (Tex.1966). When a jury sits as the fact-finder, it is the court's duty to determine the nature and extent of the property condemned and to instruct the jury regarding the rules of compensation or damages applicable to the particular case. See Texas Pig Stands, Inc. v. Krueger, 441 S.W.2d 940, 946 (Tex.Civ.App.--San Antonio 1969, writ ref'd n.r.e.); Texas Public Utilities Co. v. Bass, 297 S.W. 301, 303 (Tex.Civ.App.--Austin 1927, writ dism'd).

As stated by ...