DeWitt & Rearick, Inc. v. State

531 S.W.2d 862, 1975 Tex. App. LEXIS 3267
CourtCourt of Appeals of Texas
DecidedNovember 26, 1975
DocketNo. 6421
StatusPublished
Cited by2 cases

This text of 531 S.W.2d 862 (DeWitt & Rearick, Inc. v. State) 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
DeWitt & Rearick, Inc. v. State, 531 S.W.2d 862, 1975 Tex. App. LEXIS 3267 (Tex. Ct. App. 1975).

Opinion

OPINION

WARD, Justice.

This is a condemnation partial taking case where claim for severance damages to the remainder was waived. The condemnation action was by the State of Texas, and it sought 3.423 acres of land for what was to become the Border Highway. The one issue submitted to the jury inquired as to the market value of the land condemned. The jury determined this to be $17,115 or $5,000 an acre. The landowner, being dissatisfied with the jury finding and with the judgment entered, has appealed. We affirm.

In 1965, the landowner purchased thirty acres of farm land for residential development purposes and at a price of $4,329 an acre. The property was south of and adjoined a fully developed residential subdivision of El Paso. The eastern boundary of the tract lay next to the Ascarate Golf Course while the southern end adjoined International Boundary Commission land containing the Rio Grande River next to the Mexican border. The landowner successfully developed most of the area, and by 1968 [864]*864had disposed of all of the property with the exception of an irregularly shaped ten-acre tract of land lying in the south portion of the original thirty acres. At that time, the landowner determined that for the best and highest use, the remaining property could be developed as multi-family or apartment dwellings. An application for rezoning was presented to the City of El Paso, and after consideration it was refused. Further development of the landowner’s property stopped, which the landowner blamed on the uncertainty in official circles as to where the Border Highway would be located. In 1971, the landowner sold a diagonal strip of land through his property to the City for what became known as the Delta Street Extension, and in 1972, the southeastern corner of the property was also sold to the City as a flood ponding area. Admittedly, these two conveyances were made under the threat of condemnation by the City and were purchased for use with the proposed Border Highway. This was the situation on February 12, 1973, the date of taking, when the State acquired the questioned 3.423 acres of this remaining property for the purposes of constructing the Border Highway, which will extend from the center of El Paso and follow the Rio Grande River and the Mexican border southward.

The landowner contends that there was no evidence, and that the evidence was insufficient to support the jury’s answer to the submitted issue, and finally, that the answer was against the great weight and preponderance of the evidence. The landowner’s testimony was to the effect the highest and best use of the entire remaining tract, including the part taken, was as multi-family or apartment use and that there was a reasonable probability that the property could be so favorably rezoned. The landowner’s valuation testimony ranged from $20,000 an acre to $21,775 an acre. The State’s testimony was that the highest and best use of the land was as residential lots and that a reasonable valuation was $3,000 an acre. The value as found by the jury was well within the range of the valuation testimony received. After having considered only the evidence favorable to the jury finding, together with the reasonable inferences arising therefrom, and ignoring all other evidence, the “no evidence” point is overruled. After considering all of the evidence, the “insufficient evidence” point is overruled, and finally, the jury’s answer is not against the great weight and preponderance of the evidence and that point is likewise overruled.

The Appellant, by a series of four points, finds fault with the form of the special issue and the accompanying instruction. For convenience, we set forth the issue and instruction as submitted and as requested:

“ISSUE AND INSTRUCTION SUBMITTED
“Issue
“From a preponderance of the evidence, what do you find was the market value of the 3.423 acres of land condemned by the State of Texas for highway purposes on February 12, 1973?
“Instruction
“In answering Special Issue Number One you are instructed that you shall not take into consideration any increase in value, if any, and decrease in value, if any, which may have accrued to the Defendant’s land due to the location of said highway on such land.”
[865]*865“TSSTJE AND INSTRUCTION REQUESTED
“Issue
“From a preponderance of the evidence, what do you find was the market value of the Defendant’s tract of land being condemned immediately before the taking, considering the fact that it was supported by and was a part of the Defendant’s whole property?
“Instruction
“In answering the foregoing Special Issue Number One you are instructed to exclude increase in value, if any, and decrease in value, if any, by reason of the benefits or injuries with regard to the property taken for State Highway purposes and you are to consider the reasonable market value of the land being taken as if there were no State Highway being constructed, but consider only the reasonable market value of the land as that term has been defined heretofore.”

All valuation witnesses apparently concluded that the part taken was not a self-sufficient economic unit and could not be considered independent of the remainder, and all values were ascertained by evaluating the part taken as a proportionate part of the whole. All witnesses further testified that the value of the part taken did not differ in any material respect from the value of the remainder. In light of this testimony, the proper basis was established for the proper admission of the average value technique. City of Tyler v. Brogan, 437 S.W.2d 609 (Tex.Civ.App.—Tyler 1969, no writ). See discussion, City of Richardson v. Smith, 494 S.W.2d 933 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.).

The first complaint made by the Appellant on the issue is in the failure of the Court to charge the jury in positive language to consider that the part taken was supported by and was a part of the whole property. Such a charge was suggested in the T. M. Diamond article, 11 Baylor Law Review 1 at p. 8. While the requested added part may have been proper, we fail to find error in the charge as given. The Court eliminated from the issue the phrase “considered as severed land” as contained in the standard Carpenter charge. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936). This is the portion often criticized when an average valuation is made of the part taken, and where it has been suggested that the words “considered entirely apart from the increase or decrease in value of the remaining land” be substituted for the phrase “considered as severed land.” State v. Cherry, 517 S.W.2d 337 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.). In the case before us where all appraisal witnesses valued the part taken as a proportional part of the whole, the charge as submitted was proper and the jury could not have been misled.

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Cite This Page — Counsel Stack

Bluebook (online)
531 S.W.2d 862, 1975 Tex. App. LEXIS 3267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dewitt-rearick-inc-v-state-texapp-1975.