City of Corpus Christi v. Nemec

404 S.W.2d 834, 1966 Tex. App. LEXIS 2171
CourtCourt of Appeals of Texas
DecidedJune 16, 1966
Docket197
StatusPublished
Cited by14 cases

This text of 404 S.W.2d 834 (City of Corpus Christi v. Nemec) 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 Corpus Christi v. Nemec, 404 S.W.2d 834, 1966 Tex. App. LEXIS 2171 (Tex. Ct. App. 1966).

Opinion

OPINION

GREEN, Chief Justice.

This is a condemnation suit, wherein the appellant City of Corpus Christi is taking in fee a 5.708 acre strip of land out of a 160 acre tract owned by appellee for construction of a drainage facility to drain lands in and near the southwest area of the city. In the trial in the county court, ap-pellee stipulated that appellant had the right to condemn, that all legal prerequisites had been complied with, and that the only issues to be tried were the value of the land taken and the damages to the remainder of the tract. The jury, answering special issues, found (1) that the market value of the strip taken at the time of the taking was $8,600.00; (2) that the market value of the property before the taking, excluding the 5.708 acres, was $231,400.00; (3) that the market value of such remainder after the taking was $202,894.00. The difference in the before and after taking being $28,506.00, this plus $8,600.00 value of the property taken, a total of $37,106.00, was the amount of appellee’s recovery. Since appellant had deposited in court the amount of the special commissioners award, $8,- *836 400.00, which appellees withdrew, judgment was rendered against appellant for $28,626.00, plus an item of $21.20 interest.

The property of appellee adjoined the land involved in the case of City of Corpus Christi v. Polasek, Jr., this day decided by this court, 404 S.W.2d 826, the Polasek land lying to the northeast of the Nemec property, and the drainage facility in both instances is the same. As the ditch leaves Nemec, it enters the strip condemned of Polasek, and the evidence in both cases involving the effects of this facility on the market value of the property after the taking is very similar.

In the trial, E. Charles Lewis was placed on the stand by appellee, and W. A. Roberts and Charles DeLomel by the appellant, as witnesses of market value of the property taken and of the remainder before and after the taking. Each of these witnesses were realtors and licensed real estate brokers of much experience in and about Corpus Christi, and each qualified as experts in the appraisal of land values in the area of appellee’s -land, and in the matter of subdivision development. Each -agreed that the highest and best use of the property involved was to hold it for future subdivision development, and in the meanwhile farm it, and that while the income from farming would not justify the present market value of the property, it would help an investor to defray expenses while holding it until it could be devoted to its highest and best use.

By its first and twenty-second points, appellant alleges error in the trial court’s action in overruling its objections to the special instructions accompanying Special Issue No. 3, inquiring of the value of the remainder after the taking. The point involves the same objection to the same instructions to the same special issue as was raised in City of Corpus Christi v. Polasek, supra, in appellant’s tenth point. For the reasons there discussed, appellant’s first point is overruled.

In points 2, 3, 4, and 5, appellant contends error (2) in the court granting ap-pellee’s motion in limine having reference to permissive use of crossings of the drainage right-of-way, and (3, 4, 5) withdrawing testimony by the witness Lewis ori cross-examination concerning what the city might permit the landowner or purchaser of this property to do in the area of the condemned strip.

It is not reversible error for a trial court to sustain a motion in limine which requires a party to notify the court and adverse counsel out of the presence of the jury of his intention to offer certain evidence, so as to permit counsel to make his objection if he wishes in the jury’s absence, such as the motion in question provided. Before a party can correctly claim error, he must offer his evidence, and secure an adverse ruling from the court. Hartford Accident and Indemnity Co. v. McCardell, Tex.Sup.Ct., 369 S.W.2d 331, 335; State v. Wheeler, Tex.Civ.App., 390 S.W.2d 339, writ ref. n. r. e.

Testimony of a special privilege which might be granted, refused, or if granted, revoked at the will of the con-demnor, is not admissible as evidence to lessen the amount of the landowner’s damages caused by the taking of a portion of his property. Creighton v. State, Tex.Civ.App., 366 S.W.2d 840, writ ref. n. r. e.; Hill v. State, Tex.Civ.App., 289 S.W.2d 801; Perkins v. State, Tex.Civ.App., 150 S.W.2d 157, writ dism. The court did not err in withdrawing Lewis’ testimony from the jury. Additionally, the statement of facts does not show any objection being made by appellant to the court telling the jury to disregard that portion of Lewis’ evidence. (See court’s instruction under Points 8 and 9 infra)

Points 2, 3, 4, and 5 are overruled.

By its points 10 to 17 inclusive, briefed together, appellant contends that the court erred in refusing to permit appellant to introduce evidence concerning *837 special benefits to the remainder of appel-lee’s property as the result of the construction of the drainage. As shown by the points and the statement thereunder, appellant’s complaint as briefed was to the action of the court in sustaining objections of appellee to plaintiff’s exhibits identified as exhibits 4, 5, 8, and 9, and denying appellant the right to have its expert witness Graham testify concerning such exhibits to show special benefits offsetting damage to the remainder.

Voir dire examination of the witness by appellee showed that exhibit 4 was a plat by Graham showing a proposed way in which the remainder could be laid out after the taking, reflecting future use of the ditch and right-of-way for crossing of sewer lines, water lines, and other purposes. It appears that when this was first presented, the court overruled appellee’s objection that since the city was not obligated to permit such use by a developer of this right-of-way, such evidence of a possible permissive crossing of an area to which a landowner had no matter of legal right was not admissible to show special benefits. Thereafter, the court granted appellee’s motion in limine that before any testimony should be offered to show possible permissive use of the property condemned where such use was not a matter of right of the landowner, permission of the court, out of the hearing of the jury must be obtained. No further offer of exhibit 4 was made by appellant, and no further testimony from Graham as to such exhibit was attempted to be elicited.

Exhibit 5 was identified as an erosion control plan prepared by Graham in April 1965, months after the taking by appellant of the strip. Appellee’s objection, sustained by the court, was to the effect that such a plan could not have affected the market value of the property on May 14, 1964, the day of the taking. Although the record shows that this exhibit was offered in evidence and excluded, the exhibit does not appear in the statement of facts or in any bill of exception.

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Bluebook (online)
404 S.W.2d 834, 1966 Tex. App. LEXIS 2171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-corpus-christi-v-nemec-texapp-1966.