City of Dallas v. Fridge

410 S.W.2d 40, 1966 Tex. App. LEXIS 2688
CourtCourt of Appeals of Texas
DecidedDecember 7, 1966
DocketNo. 11454
StatusPublished
Cited by1 cases

This text of 410 S.W.2d 40 (City of Dallas v. Fridge) 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 Dallas v. Fridge, 410 S.W.2d 40, 1966 Tex. App. LEXIS 2688 (Tex. Ct. App. 1966).

Opinion

PHILLIPS, Justice.

This is a condemnation case. The City of Dallas condemned 5.36 acres of land belonging to appellees taking the entire tract and a fee simple title.

Appellees’ 5.36 acre tract of land, which they purchased in 1959, is among approximately 20,669.436 acres of land purchased by the City of Dallas from the year 1959 to December 1965, for the purpose of the Forney Reservoir Project. Forney Reservoir is being constructed for the purpose of supplying water for the future needs of the City of Dallas.

A partial summary judgment having been granted by the court to the appellant as to its powers and rights to condemn the property in question, this case was submitted to a jury on the sole issue of the market value of appellees’ land.

Appellant City of Dallas presented one value witness, George Becker, Jr., who appeared as a City of Dallas employee who handled the acquisitions of Forney Reservoir for the City of Dallas. Becker placed the value of appellees’ land at $1,972.00.

Appellees’ value witness was George W. Riddell who has been a realtor and appraiser in Dallas County since 1932. He testified as to the many individuals and firms from whom he had appraised, including the City of Dallas, appellant herein. Mr. Rid-dell enumerated the real estate societies and organizations of which he was a member. He described the property and neighborhood and brought numerous exhibits to show the jury in picture form the area under discussion. He testified as to the appraisal techniques that he used in appraising subject property. He brought the jury sales of three pieces of property within the immediate neighborhood, plus the sale of subject property itself.

The sales used by appellees’ witness Rid-dell ranged in value, per acre, from approximately $1,000 in 1959, to $2,050 in 1961, to $4,800 in 1964, to $8,000 in 1965.

Based on these sales and other sales that he considered and investigated, and his complete appraisal of appellees’ property, Riddell placed a value of $4,000 per acre on the property as of October 22, 1965 or a total figure of $21,440.

The jury returned a verdict of $19,757 and judgment was entered thereon.

We affirm this judgment.

Appellant is before this Court on five points of error, the first being that of the trial court in making statements and commenting in the presence of the jury, as to the credibility, qualifications and testimony of the appellees’ only value witness, Riddell, while said witness was being cross-examined by the appellant, which were a comment upon the weight of the evidence as well as the witness’ credibility and displayed a bias and prejudice on the part of the court in favor of the appellees against the appellant.

We overrule this point.

The exchange in question was as follows:

“Q Mr. Riddell, yesterday I was asking' you, I believe, about your opinion as to the effect of the Forney Reservoir on the Zion Road area in Dallas County. Would you give the Jury the benefit of your opinion in that [42]*42regard, as far as your opinion not affecting real estate values in that area?
MR. HALL: Your Honor, in complete fairness to the witness and the Jury, we ask the Court instruct him not to just give him an area, but to inquire of this witness of a sale in particular that he is talking about.
THE COURT: Yes, relegate it to a tract that he has done.
MR. HOLT: Do I understand the Court’s ruling to be that I cannot go into the effect and influences of the reservoir on the area of the location of the subject property?
THE COURT: Counsel, he has testified to certain sales, that he examined himself—
MR. HOLT: Yes, Your Honor.
THE COURT: And that is where he has so made himself an expert in this particular matter that he has appraised this country around there.
MR. HOLT: First of all, Your Honor, we except to the remarks of the Court as a comment on the weight of the evidence.
THE COURT: All right. Fine. Let’s move along now.
MR. HOLT: I have no ruling, Your Honor, on as to whether or not I am to be deprived of the right to question this witness as to the effect of the For-ney Reservoir on the area of real estate in the general location of the subject property.
THE COURT: This Court is not going to deprive anyone of anything. It is the ruling of this Court that you may ask him his opinion with relation to what he has testified to.
MR. HOLT: He has testified, Your Honor, to a general knowledge of real estate in this area.
MR. BLAKELEY: Your Honor, might I ask if the Court would object to instructing the Jury to disregard any comments of counsel?
THE COURT: All right, Mr. Blakeley—
MR. BLAKELEY (interposing): And also, Your Honor, we have no objection if he wants to go into the question I think he is leading up to, the general enhancement to the community in general. I believe that is what he is leading up to. We have no objection to that.
THE COURT: You may proceed with your answer if the objection is withdrawn.”

We hold that appellant waived his objection to the comment of the trial court by failing to secure a ruling thereto by the trial judge. Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App. Houston 1963, no writ) and the cases cited therein. In order for the Court of Civil Appeals to decide a question which is not fundamental, the record must show that the question was raised and passed upon by the trial judge. Van Zandt v. Desdemona Independent School District, 283 S.W. 626 (Tex.Civ.App. Eastland 1926, no writ).

Appellant’s second point of error is the failure of the court to strike from the record all testimony and evidence presented by the appellees relative to the sale from Anderson to Ivy when the undisputed evidence shows that the sale involved a trade of two other parcels of real estate, thus rendering such sale when used as a comparable sale for value purposes, not comparable as a matter of law.

One of the sales used by the appellees’ witness, Riddell, to support the value placed on appellees’ property was a sale from one Anderson to one Ivy. This sale was admitted into evidence without objection as to a trade being involved. At a later time appellant moved the court to strike the sale [43]*43from the record. The court overruled this motion on the ground that the objection went to the weight rather than the admissibility.

We hold that the trial court was correct in this ruling. The evidence discloses that $43,000 was the agreed price for the land in this sale even though two pieces of property were involved in the transaction as a trade. There was testimony that the consideration shown in the deed from Anderson to Ivy was the actual consideration of the sale even though a trade was involved.

This point is controlled by the court’s holding in State v. Hays, 361 S.W.2d 401 (Tex.Civ.App. Dallas 1962, writ ref’d n. r.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maxey v. Texas Commerce Bank of Lubbock
571 S.W.2d 39 (Court of Appeals of Texas, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
410 S.W.2d 40, 1966 Tex. App. LEXIS 2688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dallas-v-fridge-texapp-1966.