City of Beaumont v. Kinard

533 S.W.2d 481, 1976 Tex. App. LEXIS 2491
CourtCourt of Appeals of Texas
DecidedFebruary 12, 1976
DocketNo. 7794
StatusPublished

This text of 533 S.W.2d 481 (City of Beaumont v. Kinard) 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
City of Beaumont v. Kinard, 533 S.W.2d 481, 1976 Tex. App. LEXIS 2491 (Tex. Ct. App. 1976).

Opinion

STEPHENSON, Justice.

This is a condemnation case in which the City of Beaumont took a 10-foot strip in fee. No part of the buildings on the remainder was located on the strip taken. Defendants are George Kinard and wife, as owners, and Electrical Machinery and Repair, Inc., as lessee. Trial was by jury and the City appeals from the judgment entered on the verdict.

The jury found the value of the strip taken to be $4,112 and then a difference of $13,302 in the before and after values of the remainder. No complaint is made on this appeal as to the value of the strip taken.

The City has a series of points complaining about the action of the trial court in allowing defendants’ witness to testify to the cost of reconstruction or restoration of improvements on the remainder land. It is urged that the admission of such testimony was error, because there is no evidence that such improvements were rendered valueless or obsolete by the taking and also because there is no evidence that the difference in the market value before and after the taking would exceed the cost of construction. It is also urged generally that there is no evidence of diminution in value to the remainder after the taking. We consider these points of error together.

Defendants’ evidence relating to these points of error is generally as follows: defendant lessee’s business is that of repairing large electric motors, and trucks are used exclusively to get the machinery in and out of this plant. There are high cranes running the length of the building on stationary steel frames, which lift the machinery off of the trucks into the truck receiving bay. The cranes then move the machinery into a work area. Large tractor-trailer trucks have to come off of a busy thoroughfare onto the premises, and negotiate a turning and backing procedure to reach the receiving bay. After the taking, there is no longer room for the large trucks to back into such bay area. The substance of the testimony objected to is that the utility of the building on the remainder is diminished because of the inability of the large trucks to reach the bay area.

The defendants’ witness testified first as to the values before and after, using the cost approach, placed such values at $101,-429 and $88,127 for a difference of $13,302. Then that witness testified: that after the taking there would no longer be room for the large trucks to back into the loading bay; that the problem could be alleviated by paving the alleyway on another side of the property, removing a sliding door, enclosing a wall, installing an overhead door, demolishing a covered area and relocating some of the machinery. The reasonable cost of those changes was $13,302; that by making those changes the property would be restored to its highest and best use.

The general rules concerning the admissibility of evidence in an eminent domain case were set out by the Supreme Court of Texas in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 198-200 (1936), as follows:

“ ‘ “The market value of property includes its value for any use to which it may be put. If, for reasons of its surroundings, or its natural advantages, or its artificial improvements, or its intrinsic character, it is peculiarly adapted to some particular use, all the circumstances which make up this adaptability may be shown, and the fact of such adaptation may be taken into consideration in estimating the compensation.” ’
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[483]*483“ ‘The fact that the road necessitated additional fencing and establishment of an additional watering place in order to restore the land to its former usefulness and value for the purpose for which it was used by the owner was evidence of a depreciated value. The cost of additional fencing, establishing water places, and other items of like nature necessitated by the laying of the road do not constitute a measure of damage and are not recoverable as distinct items of damage, but evidence of this nature is admissible, and is entitled to be accorded its proper probative force in determining whether the tract of land as a whole has been damaged.’
* * * * * *
“ ‘In arriving at this second item of damage [depreciation in value to the remainder], the parties would have the right to introduce evidence of everything that would tend to affect the value of the land, in the estimation of a proposed purchaser, or that would tend to make it more or less valuable to the present owner, such as the shape in which the tract will be left; the increased amount of fencing, if any, that will be required; the increased expenditure made necessary to provide water; the added facilities, if any, provided for travel to the owner of the land.’
# * * * ⅜ *
“The matters of proof touching value as well as damages are so varied and multitudinous that only general rules can be formulated.
“Generally, it may be said that it is proper as touching the matter of the value and depreciation in value to admit evidence upon all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the present market value.”

In Spindor v. Lo-Vaca Gathering Company, 529 S.W.2d 63 (Tex.1975), the general rule is restated to the effect that the factors to be considered are those that would reasonably be given consideration in negotiations between a willing seller and a willing buyer. Also, this statement is made at page 65:

“The expert’s estimated cost to restore property is admissible in a condemnation trial to prove the probable diminution in fair market value of the remainder immediately after the taking, regardless of whether any actual damage occurs.”

The most recent expression from the Texas Supreme Court is in State v. Schaeffer, 530 S.W.2d 813 (Tex.1976), 19 Texas Sup.Ct. Jrl. 113, 115 (December 20, 1975).

“And depending on the particular circumstances, removal, reconstruction or replacement costs of improvements located on the property taken or the property remaining may or may not be a proper subject of inquiry.”

Apparently there are few cases in Texas passing directly upon the question before us. In one of the early cases, State v. Blair, 72 S.W.2d 927 (Tex.Civ.App.—El Paso 1934, no writ), the Court held specifically that evidence as to the cost of moving the buildings on the remainder was competent to show the extent of the depreciation in value of such remainder. The evidence in this case showed that by taking a 11.5 foot strip of land, the use of the land for a filling station and tourist camp would be interfered with; that there would not be room for cars to back into the garage used in connection with the tourist camp, and there was not room to stop an automobile by the gasoline pump. Evidence was admitted by the trial court to show the cost of moving the buildings and pump further away from the highway. See also, Bois D’Arc Island Levee Imp. Dist. No. 4 v. Shepherd,

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Related

Frankfurt v. Texas Turnpike Authority
311 S.W.2d 261 (Court of Appeals of Texas, 1958)
Spindor v. Lo-Vaca Gathering Company
529 S.W.2d 63 (Texas Supreme Court, 1975)
State v. Schaefer
530 S.W.2d 813 (Texas Supreme Court, 1975)
City of Dallas v. Priolo
242 S.W.2d 176 (Texas Supreme Court, 1951)
Reeves v. City of Dallas
195 S.W.2d 575 (Court of Appeals of Texas, 1946)
State v. Carpenter
89 S.W.2d 194 (Texas Supreme Court, 1936)
State v. Blair
72 S.W.2d 927 (Court of Appeals of Texas, 1934)
City of Dallas v. Shackelford
200 S.W.2d 869 (Court of Appeals of Texas, 1946)

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Bluebook (online)
533 S.W.2d 481, 1976 Tex. App. LEXIS 2491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-beaumont-v-kinard-texapp-1976.