Central Power & Light Company v. Martinez

493 S.W.2d 903
CourtCourt of Appeals of Texas
DecidedApril 20, 1973
Docket746
StatusPublished
Cited by18 cases

This text of 493 S.W.2d 903 (Central Power & Light Company v. Martinez) 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
Central Power & Light Company v. Martinez, 493 S.W.2d 903 (Tex. Ct. App. 1973).

Opinion

OPINION

YOUNG, Justice.

This is an appeal from a condemnation proceeding brought by Central Power & Light Company to condemn a 4.1 acre strip easement (60 feet wide) out of a 190.1 acre tract for purposes of establishing a high voltage electric transmission line over *905 defendants’ property. Based on the jury verdict, the trial court rendered judgment awarding compensation to the defendants in the sum of $14,796.00. The plaintiff appeals.

The defendants’ property is located in Calhoun County, Texas, in a rural area some two and one-half miles southwest of Port Lavaca. The property is used predominately for farming operations. The easement taken runs along the southeast border of the defendants’ property for approximately 2,900 feet. Appellants have erected three steel towers on the easement which carry three circuit wires and two shield wires. One of the defendants, Elias R. Martinez, farms the property and lives with his family in a residence which extends into the easement a distance of 25.6 feet. The auxiliary farm buildings near the residence consist of a garage with attached tractor shed, which is situated entirely within the easement, and a storage shed, which is seven feet from, and completely outside, the easement.

We summarize the conclusions of the principal expert witnesses as to the easement and remainder before and after taking, together with the jury’s verdict, in the following chart:

Part Taken 4.1 acres
Before After
1. W. S. Duke, Jr. $2,240.00 $410.00 (Defendants' witness)
2. Ron Brown $1,750.00 $400.00 (Plaintiff's witness)
Jury Verdict $2,000.00 $400.00
Remainder 186 acres
Before After Damage
$74,360.00 $54,565.71 $21,624.29
$79,950.00 $79,950.00 $ 1,350.00
$75,500.00 $62,304.00 $14,796.00

Appellant complains in point one of the trial court’s action in sustaining of appel-lees’ motion in limine regarding appellant’s offering of testimony of intention to make a lesser use of the easement than that set out in the condemnor’s pleadings. Further, in point two the appellant complains that the trial court improperly refused, upon objection of defendants, to admit testimony of its witness, Fred Youngs, dealing with actual uses of the easement which were reasonably foreseeable and probable.

Prior to the commencement of trial and the voir dire examination of the jury panel, the trial court sustained appellees’ motion in limine prohibiting:

“Reference to any of the Plaintiff’s witnesses admitting that they intend to use a lesser use of the easement than that which is set out in their pleadings;

Subsequently, during the course of the trial, the witness, Fred Youngs, was asked this question:

“Q Now, one other thing, Mr. Youngs. After the three transmission towers are placed on the Martinez property, or on any property along the transmission line, subsequent to their being constructed and the C. P. & L. people leave, in the event that it becomes necessary for C. P. & L. to go back on the land to make any form of repairs, are you familiar with the practice of C. P. & L. for compensating the landowner for any property rights that may have been damaged by going on the land ?”

Objection by appellees’ attorney follows:

“Objection, Your Honor. That has no bearing on this case. He is asking this man to tell about what they are going to do if they damage the property, which is not an issue in this case.”

The Court: “Sustained.”

No further questions were asked the witness at that time. Earlier in the trial, however, this witness did testify concern *906 ing conditions (number and location of towers and number and types of wires) on the easement at the time of trial and concerning the intention to use the property in the future to the extent set out in the pleadings. Otherwise there is nothing in the record by way of bill of exception by which appellant seeks to indicate what testimony it was prohibited from showing to the jury about reasonably foreseeable and probable uses of the easement.

The sustaining or overruling of a motion in limine has been held not to be reversible error. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W 2d 331 (Tex.Sup.1963); Johnson v. Reed, 464 S.W.2d 689 (Tex.Civ.App.—Dallas 1971, n. r. e.). Error is not shown in the exclusion of evidence unless the record shows clearly, by bill of exceptions or otherwise, what the evidence would have been if admitted. Merrifield v. Seyferth, 408 S.W.2d 558 (Tex.Civ.App.—Dallas 1966, no writ).

Appellant relies on City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.Sup.1972). There the overriding issue between the parties concerned the actual uses the City of Pearland would make of the ten-acre site, together with the right of the City to establish those uses which were reasonably probable. By instruction in the charge, the court required the jury “to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant.” (Emphasis supplied.) This instruction was held to be erroneous as a comment on the weight of the evidence. The Alexander case is readily distinguishable from the present case in that no instruction in the charge to the jury was given requiring the jury to presume that Central Power & Light Company would use the entire easement for towers and electric transmission lines. (Emphasis supplied). Therefore, appellant’s first two points of error are overruled

By its points three through six, appellant complains that certain testimony of witness, W. S. Duke, Jr., dealing with the costs of relocating appellees’ improvements, was improperly admitted by the trial court. Appellant says most of such testimony of Mr. Duke was based on bids from others not before the court, and therefore constitutes hearsay. Further, appellant says that such testimony would cause a betterment for appellees and permit them to recover double damages.

In addition to being in the business of appraising property, Mr. Duke stated that he was also in the business of real estate, contracting (building about ten houses each year), mortgage lending and insurance. His qualifications as an expert were not challenged except as to relocation costs.

On direct examination, Mr. Duke testified that he considered bids as follows: $1,635.00 from a house mover; $1,257.93 from a carpenter; $2,765.00 from a plumber; $1,700.00 from a nurseryman; and $900.00 from a truck-hauler. The total amount of such bids was $8,257.93.

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Bluebook (online)
493 S.W.2d 903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-power-light-company-v-martinez-texapp-1973.