Centerville Independent School District of Leon County v. Wingfield

450 S.W.2d 946, 1970 Tex. App. LEXIS 2255
CourtCourt of Appeals of Texas
DecidedJanuary 22, 1970
Docket4866
StatusPublished
Cited by6 cases

This text of 450 S.W.2d 946 (Centerville Independent School District of Leon County v. Wingfield) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centerville Independent School District of Leon County v. Wingfield, 450 S.W.2d 946, 1970 Tex. App. LEXIS 2255 (Tex. Ct. App. 1970).

Opinion

OPINION

HALL, Justice.

Appellees initated this lawsuit, seeking to enjoin what they alleged was a threatened trespass by the appellant school district onto 39.4 acres of land owned by them. By cross-action, the school district condemned the northern 20 acres of the tract, alleging that the land was presently needed for its educational program “and to provide adequate space for public school needs in the future.”

Trial was to a jury which found that the value of the 20 acres taken was $20,000; and, in answers to special issues two and three, that the remaining 19.4 acres had a value of $19,400 immediately before the taking and a value of $9,700 immediately after the taking. The date of taking was stipulated to be January 20, 1969.

The school district appeals on four points of error. It does not complain of the jury’s finding on the value of the parcel taken, but it does contend that there is no probative evidence in the record to support the jury’s answers to the second and third special issues, and, alternatively, that those answers are against the great weight and preponderance of the evidence.

Only two witnesses purported to give testimony of value of the remainder before and after the taking. John Callahan, a witness for the school district, expressed the opinion that the remainder had a reasonable market value of $350 per acre, or $7,000, immediately prior to the taking, and a value of $450 per acre, or $9,000, immediately after the taking. Harold Stern, a co-owner of the tract, testified as follows :

“Q. Prior to January 20, 1969, did you know the reasonable cash market value of the entire tract of land?
“A. Yes sir.
“Q. And what would you say was the value of the entire tract of land?
“A. Between $1,500 and $2,000 an acre.
“Q. And state whether or not that includes the 19.4 acre tract of land?
“A. Yes, sir.
“Q. All right. Now, then, after January 20, 1969, which is the date that the 20 acres was severed, do you know the reasonable cash market value of the 19.4 acre tract of land considered as severed land?
“A. Yes, sir, I think I do.
*948 “Q. All right. And what is that value, then, please?
“A. I think it was worth about half as much - -
“Q. That would be - -
“A. As it was as part of the whole.”

Appellant says that this testimony of Stern does not include a value of the remainder, exclusive of the tract taken, prior to the taking; and, therefore, that the jury’s answer to special issue number two, which sets a value higher than that testified to by Mr. Callahan, is not supported by any evidence. We do not agree. As we understand Stern’s testimony, he stated that the 20 acre tract taken and the 19.4 acre tract remaining had the same values per acre immediately prior to the taking; and that, in his opinion, the value was $1,500 to $2,000 per acre. We do not believe his testimony is reasonably or properly subject to any other interpretation. Other witnesses for the landowners and the school district set the value of the 20 acres at $1,500 per acre; $1,250 per acre; and $500 to $600 per acre.

As sole judge of the credibility of the witnesses and the weight to be given to the testimony, the jury had the right to accept, as it apparently did, the opinion expressed by Stern that immediately prior to the taking the 20 acre and 19.4 acre tracts had the same values per acre, 24 T.J.2d 42-46, Evidence, Sec. 549; and it had the right to set the value of the 19.4 acre tract immediately prior to the taking, as it did, at any amount between the highest and the lowest expressed by the witnesses. City of Fort Worth v. Estes, (Tex.Civ.App., 1955, writ ref., n. r. e.) 279 S.W.2d 687, 688; Roberts v. State, (Tex.Civ.App, 1961, no writ hist.) 350 S.W.2d 388, 391; Tuttle v. State, (Tex.Civ.App., 1964, writ ref., n. r. e.) 381 S.W. 2d 330, 336; Gossett v. State, (Tex.Civ.App., 1967, writ ref., n. r. e.) 417 S.W.2d 730, 736.

Appellant asserts that the opinion expressed by Stern of damage to the remainder is a mere “naked and unsupported conclusion;” that there is no evidence in the record to show the nature of any alleged damage to the remainder nor relate any such damage to the market value of the property; and that, therefore, his opinion does not constitute evidence of probative force. We believe there is evidence to support Stern’s opinion of damage to the remainder, and we overrule' appellant’s contention.

With the exceptions that there are two setoffs in the southeast boundary of the 39.4 acre tract, creating five “corners” there, and that the tract gradually widens as it progresses from North to South, it is generally in the shape of a square. From the northeast corner to the first setoff on the southeast of the original tract, it borders on U. S. Highway No. 75 for a distance of 1,038 feet. Because the taking is of the northern 20 acres, the remainder will have frontage on the highway of only 352 feet. Until the taking, the approach onto the property was at the northeast corner off highway No. 75,- where the surface of the highway right-of-way and the property are even and smooth. However, a fairly deep drainage ditch, referred to by some witnesses as a “gully”, is located along the border of the remainder tract with the highway.

Stern testified that after purchasing the 39.4 acres, he and the other owners “picked up all the many bits of metal, iron, timber and brick that were scattered over the place for the last hundred years;” had it re-plowed ; “added minerals and fertilizer and grasses, coastal bermuda grass, and planted cover crops of crimson clover and legumes ;” that the entire place “is well sodded with grasses of some character;” and that the sod is of a permanent nature. Appel-lees have used the tract as a quarantine or “holding station” for cattle enroute to their ranch; for keeping animals that need watching; for animal separation; and for hay purposes and grazing. Stern stated that there are no improvements on the 19.4 acres, but that the following improvements *949 are located on the 20 acres taken: a horse barn with four stalls and with an attached storage shed, and the shed has a reinforced grain room in it; three pens between the barn and the highway, with a loading chute; an old house used for storage; a two-story hay shed; two very high pens for containing stallions and other animals; another pen and storage shed with another horse stall in it; and a tenant house in which their tenant was living at the time of condemnation. Additionally, there are three stock ponds on the 20 acres. There is one small stock pond on the remainder.

Stern also gave the following testimony:

“Q. Can you explain to the jury what would cause that diminution in value (of the remainder) ?
“A.

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Bluebook (online)
450 S.W.2d 946, 1970 Tex. App. LEXIS 2255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centerville-independent-school-district-of-leon-county-v-wingfield-texapp-1970.