Lo-Vaca Gathering Company v. Moore

403 S.W.2d 161, 1966 Tex. App. LEXIS 2716
CourtCourt of Appeals of Texas
DecidedMay 4, 1966
DocketNo. 11370
StatusPublished
Cited by4 cases

This text of 403 S.W.2d 161 (Lo-Vaca Gathering Company v. Moore) 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
Lo-Vaca Gathering Company v. Moore, 403 S.W.2d 161, 1966 Tex. App. LEXIS 2716 (Tex. Ct. App. 1966).

Opinion

ARCHER, Chief Justice.

This is a condemnation case for an underground pipeline easement across a 2121-acre tract of farm and ranch land in Bastrop County. Regular condemnation proceedings were held, and appellee filed objections to the award of the Special Commissioners. Trial was before a jury. Appellee’s motion to disregard the answers to the special issues was sustained in part and overruled in part. This appeal is only from those parts of the judgment that are based upon the jury’s answers to the special issues which relate to the decrease in value to appellee’s property crossed by the pipeline.

The only issues are the damage issues. Since the amount of damage is the only issue, the “sufficiency” of the evidence to support the damage findings is the controlling issue.

The damage issues include three separate inquiries:

(1) Damage to the 4.98 acre “permanent easement” — i. e. — difference in value before and after taking, because a right-of-way rather than the fee was taken.
(2) Damage to the remainder — i. e. — the difference in value before and after taking of the 2111 acres.
(3) Damage for the temporary “casting easement; ” this was resolved by stipulation and is not now in issue.

The “no” and “insufficient” evidence points attack the jury findings establishing the damages to the “permanent easement” and .the “remainder; ” the damages awarded in the judgment for the permanent easement were reduced by a “remittitur.”

The appeal is founded on seventeen points and are that the court erred in overruling plaintiff’s motions to disregard the jury’s answers to Special Issues Nos. 3, 4 and 5, and that the jury’s findings in response to Issues Nos. 2, 3, 4 and S were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and [163]*163unjust; that the jury’s answers to Special Issues Nos. 4 and S were grossly excessive; that there was no competent evidence to support the jury’s findings in response to Issues Nos. 2, 3, 4 and 5.

Appellant claims that Special Issues Nos. 1 and 2 (the difference in the beforehand after value of the permanent easement) established a reduction in value that is excessive, however there was an admitted reduction, the amount is in dispute.

Appellant contends that an award of more than $500.00 is excessive but a witness, E. Charles Lewis, for appellant, fixed the damage at $675.00, and another witness for appellant, Jim Fredericks, fixed the damage at $946.00.

The trial court raised the answer of the jury to Issue No. 2 from $50.00 to $397.94, which resulted in a reduction of damage. The appellee makes no point of this improper procedure. See Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826, for an approved procedure in making a remittitur.

The opinion testimony on Issues Nos. 1 and 2 are ranges from $2,490.00 to $1,494.00 as to Issue No. 1 and from $50.00 to $1,-125.00 as to Issue No. 2.

The jury fixed the value before taking at $2,490.00 and the after taking value at $50.00; this amount was raised by the trial judge to $397.94.

In answer to Issue No. 3 the jury found that the tracts laying outside of the easement were decreased in market value by reason of the taking of the easement.

In answer to Issue No. 4 the jury found that the value of the remaining 2111 acres excluding the pipeline right of way, was $500,000.00, and in answer to Issue No. 5 found that the market value of the 2111 acres, excluding the pipeline right of way after the taking of the easement was $492,-617.00.

The jury’s duty was to resolve the conflicts in the testimony and did so in making its findings and we believe such findings are supported by the testimony of witnesses Duncan Allen, Grady Tuck, Jr. and W. W. Moore.

The right of way is 75 feet wide and extends from a point in a northerly property line fence of the grantor’s property and extends south 54° 00' West 5,417 feet to a point in the west property line fence of grantor’s property, and the easement taken contains 4.98 acres of land, and condemned for the construction, location, maintenance, operation, renewal, repair, inspection, replacement, restoration and removal of one 20 inch pipeline and underground appurtenances, etc.

The damages for the 4.98 acres taken was fixed at $2,092.06 and the before and after value of the remainder of land was $7,383.00 or a total of $9,475.00.

Appellant complains of the amount allowed for the right of way as being excessive and against the great weight and preponderance of the evidence.

As we have stated the testimony of the several expert witnesses differed in amounts but even witnesses for appellant fixed a value of more than $500.00 damages, and the jury could accept or reject such of the testimony as it desired.

The easement extends for almost a mile in a diagonal direction across the appellee’s land.

There can be no question but that the pipeline is a dangerous instrumentality, such was admitted and also that gas lines rupture and are dangerous.

Appellant placed danger signs on the pipeline a short distance from the condemned area. The line was encased under highways.

Block valves were installed as a precaution against the danger of leaks and explosion. One of appellant’s witnesses testi[164]*164fied at length that there was no danger in the gas line but counsel for appellant stated that he did not have the same opinion that his witness did.

The employees of appellant walked the easement area at intervals, and low flying planes were intended to be used “every ten days, every week, possibly every two weeks, depending on the weather.”

The ranch foreman testified that the condition of the right of way interfered in the use of farm machinery, because every time you cross it you have to slow down, and at times breakage was had.

There are other facts such as the sunken condition of the right of way above the gas line, which would require filling from time to time. Light electrical currents are maintained to prevent the pipe from corroding and such current would be attracted to any metal improvements and be affected, and the right of way easement restricts the location of improvements in the 5-acre area.

The testimony on the adverse impact of pipeline easement on purchasers is in conflict, and the jury was entitled to accept the opinions of any and all of the experts, or reject some.

The verdict of the jury on the easement taken is supported by the evidence, but there were no comparable sales which could be used as a basis for opinions on answer to Issue No. 2, the “after value” in the 4.98 acres, the “permanent easement,” and the jury could rely on the intuitive opinion of the experts. State v. Haire, Tex.Civ.App., 334 S.W.2d 488, er. ref., n. r. e.

The answers of the jury to Issues Nos. 3, 4 and 5 are supported by the testimony.

One of the witnesses called by appellee was Grady Tuck, Jr., who testified that he was in the business of buying land for resale, and had been for several years, and had personal knowledge of Bastrop County sales.

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403 S.W.2d 161, 1966 Tex. App. LEXIS 2716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lo-vaca-gathering-company-v-moore-texapp-1966.