Harris County Flood Control District v. Hambrick

433 S.W.2d 195, 1968 Tex. App. LEXIS 3066
CourtCourt of Appeals of Texas
DecidedOctober 10, 1968
DocketNo. 15314
StatusPublished
Cited by3 cases

This text of 433 S.W.2d 195 (Harris County Flood Control District v. Hambrick) 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
Harris County Flood Control District v. Hambrick, 433 S.W.2d 195, 1968 Tex. App. LEXIS 3066 (Tex. Ct. App. 1968).

Opinion

BELL, Chief Justice.

This is an eminent domain proceeding. Appellant condemned four strips of land crossing a 120 acre tract of land in Harris County belonging to H. D. Hambrick. The strips condemned aggregate 5.239 acres. The strips were acquired for the purpose of digging drainage ditches. The drainage ditches were a part of a community drainage project in northwest Harris County. The 120 acre tract was rectangular in shape. Three ditches cross the tract from north to south and empty into the fourth ditch running along the south of Ham-brick’s property. One of the north-south ditches runs along the western edge of the tract. A second one runs diagonally from north to south about midway of the west half of the tract. The third north-south ditch crosses the tract about the center. The ditches are all open ones. The right-of-way for the center or diagonal ditch is 40 feet in width and the right-of-way for the other ones is 60 feet in width. We do not find a depth or width for the ditches stated but pictures in the record reflect they are substantial in width and depth. Prior to the digging of the ditches it seems there was no particular drainage problem on this tract, nor has there been since that time. The tract was a relatively flat one but sloped gently to the south. The natural flow of the water was to the south. The land had previously been in use as a dairy operation. The testimony was that its highest and best use at the time of condemnation was as a residential subdivision.

On trial to a jury, the jury found the market value of the land taken to be $5,-100.00. The jury found that the balance of the tract immediately before the taking was of the market value of $111,000.00, and that the market value after the taking was $93,-000.00. Judgment was rendered in accordance with the verdict.

Appellant asserts for points of error:

1.That the trial court erred in refusing to submit in the charge its specially requested instruction which would limit the jury’s consideration of testimony concerning other sales of neighboring property that had been testified to by experts to one of the bases used by the experts in arriving at their opinion as to the market value of the land here involved. The instruction requested is set out in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909.

2. That the trial court erred in refusing to strike the testimony of Robert M. Atkinson. This testimony concerned the nature and estimated cost of the work that would have to be done in subdividing the property by reason of the presence of the drainage ditches.

3. That the trial court erred in refusing to comply with Rule 226a, Texas Rules of Civil Procedure.

4. That the trial court erred in refusing to grant its motion for judgment non ob-stante veredicto. Really the complaint is that there was no evidence to support the jury’s finding of damage to the balance of the tract, it being contended that Mr. Ham-brick made a judicial admission that he benefited from the drainage ditches.

There was no error under the facts of this case in refusing to include in his charge an instruction by the court limiting the consideration the jury could give to the hearsay testimony of the expert witnesses as to the sale and sale prices of neighboring property. The rule is that if the expert does not have firsthand knowledge of the sale and sales price, his testimony about what he heard or learned otherwise is hearsay. Nevertheless, such testimony is admissible not as substantive evidence of the fact of the sale and sales price but to show one of the bases used by the expert in arriving at his opinion as to the market value of the land involved in the immediate condemnation proceeding. State v. Oakley, supra; City of Houston v. Collins, 310 S.W.2d 697 (CCA, Tex.Civ.App.), n. w. h.; City of Houston v. Huber, 311 S.W.2d 488 (CCA, Tex.Civ.App.), n. w. h.

[198]*198In the case before us the appellees offered a duly qualified real state expert to testify. Appellees’ counsel asked the witness to state whether he considered any comparable sales. The witness stated he had. The first sale mentioned was from F. L. Tucker to Gus F. Wortham. Appellees’ counsel, Mr. Brown, asked the witness to state the price per acre of this sale. Appellant’s counsel, Mr. Mitchell, objected to the evidence on the ground that it was hearsay and the sale was not a comparable one. Then the following proceedings occurred:

MR. BROWN: Your Honor, it is comparable to a hundred and twenty acre tract, and one of the issues before, the Jury relates to the valuation of the one hundred twenty acre tract.
THE COURT: For what purpose is that testimony, Mr. Brown?
MR. BROWN: I beg your pardon, sir ?
THE COURT: What is the purpose of the testimony, in the first place ?
MR. BROWN: To give the Jury the benefit Your Honor, of knowing, in part, how Mr. Caldwell arrived at his opinion as to the value of Mr. Hambrick’s property. Specifically, the one hundred twenty acre tract, the one hundred and fifteen acres remaining and the five acres.
THE COURT: It is strictly limited to that purpose?
MR. BROWN: It is limited to that purpose.
THE COURT: All right, do you desire the Jury to be instructed, Gentlemen, or just the limitation for that purpose?
MR. BROWN: Just the limitation for that purpose.
THE COURT: Overrule the objection, and leave it to the Jury the weight, if any, to put on it. (Emphasis ours unless otherwise stated)

It will be noted that appellees offered the evidence for the limited purpose of showing in part how the witness arrived at his opinion. It is also noted that the court asked if an instruction was desired and appellant’s counsel remained silent.

Later during the trial evidence was offered by the same witness of a sale from the Houston Bank and Trust Company to Marks Development Company. When it was offered the following proceedings occurred :

Q (By Mr. Brown) What was the price per acre for that sale from Houston Bank and Trust Company to Marks Development Company ?
MR. MITCHELL: We object to that sale, Your Honor, as not being comparable to the property being acquired by reason of this condemnation.
THE COURT: Is there any limitation on this one ?
MR. BROWN: We offer it for the same limited purpose of the first sale, Your Honor.
THE COURT: Whether it does, or does not, substantiate the opinion of this witness ?
MR. BROWN: Yes, sir.
THE COURT: Overrule the objection.
The court then gave the following instruction :
Gentlemen of the Jury, it has been requested that you be instructed that with respect to these sales or purported sales here it is pretty obvious that they are hearsay in the main and your consideration of such testimony will be limited to the question as to not

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Bluebook (online)
433 S.W.2d 195, 1968 Tex. App. LEXIS 3066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-county-flood-control-district-v-hambrick-texapp-1968.