Lower Nueces River Water Supply District v. Collins

357 S.W.2d 449, 1962 Tex. App. LEXIS 2439
CourtCourt of Appeals of Texas
DecidedMay 2, 1962
Docket13837
StatusPublished
Cited by29 cases

This text of 357 S.W.2d 449 (Lower Nueces River Water Supply District v. Collins) 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
Lower Nueces River Water Supply District v. Collins, 357 S.W.2d 449, 1962 Tex. App. LEXIS 2439 (Tex. Ct. App. 1962).

Opinions

BARROW, Justice.

This is a suit by Natalie M. Collins and others, as plaintiffs, against the Lower Nueces River Water Supply District, as defendant, to recover damages resulting from the inundation of their land, consisting of 1,217 acres, in the reservoir created by the Wesley Seale Dam. The defendant by cross-action sought condemnation. The jury returned a verdict for $346,680.00, upon which judgment was rendered. From that judgment the defendant has appealed. Sometime prior to March 21, 1959, the Lower Nueces River Water Supply District filed condemnation proceedings against Natalie M. Collins et al., but before the hearing was had before the Commissioners, an agreement was made between the parties, that in view of title questions that might be raised, if the District would pay to the Collins landowners a sum of money equivalent to the amount of the highest award of its appraisers, the landowners would file suit against the District in the District Court of San Patricio County, and the District would then cross-act for condemnation, so that the entire controversy might be determined in the District Court. It was further agreed that the payment by the District would be in lieu of the deposit required under Article 3269, Vernon’s Tex.Civ.Stats., and such amount would be credited against any final judgment.

Thereafter, on the 21st day of May, 1959, Natalie M. Collins, Bryant M. Collins Natalie Collins Curry and husband, Demra Collins Trube and ■ husband, and Beverly Collins Meyer and husband, as plaintiffs, filed suit in the District Court of San Pat-ricio County, naming the District as defendant, alleging that it had inundated their land consisting of 1,217 acres, and praying for damages.

Thereafter defendant filed its answer and cross-action seeking to condemn an easement to inundate the surface of plaintiffs’ land lying above the 75-foot elevation contour line or, in the alternative, the fee to such surface. The defendant did not condemn the minerals. In the cross-action defendant pleaded that it had theretofore acquired from the City of Corpus Christi an easement from Natalie M. Collins and husband to the City of Corpus Christi, dated July 31, 1929, granting the rights therein specified, and alleged that the easement sought in this suit was in addition to such previously granted easement. The old easement, among other things, gave the City [451]*451the right to inundate plaintiffs’ land in the reservoir of the Mathis Dam with the normal water level not to exceed seventy-five feet above mean sea level.

Plaintiffs’ First Supplemental Original Petition alleged that the old easement granted by Natalie M. Collins and husband to the City of Corpus Christi had “terminated by its own terms and by operation of law, and is no longer in force or effect for any purpose whatsoever,” and that the defendant was not entitled to assert any rights thereunder. By trial amendment, plaintiffs pleaded more in detail their asserted reasons why the former easement had expired. The parties stipulated that the date of taking was the day following the closing of the gates of the Wesley Seale Dam on May 8, 1958.

The area of the land that lay above the 75-foot elevation consisted in part of three islands, and in part of other land which lay outside the original reservoir. It was stipulated that the islands contained 228 acres, and the other portion 150 acres. The area below the 75-foot elevation contained 840 acres. It was the right to inundate the 378 acres above the 75-foot elevation that the District sought to condemn. Plaintiffs asserted the right to recover damages for putting additional water on the area below the 75-foot elevation, including damages to the minerals. The effect of the Wesley Seale Dam would be to raise the water to 94 feet above mean sea level and inundate all of the 378 acres.

The appellant, defendant below, by its first point contends that the court erred in admitting in evidence plaintiffs’ Exhibit No. 54, being a plat showing the islands subdivided into lots. By its second point, appellant assigns as error the court’s action in admitting in evidence plaintiffs’ Exhibit No. 55, being a plat of the islands subdivided into lots and colored according to their desirability.

The record shows that these plats were made by tracing a map of these islands and marking off the acres into lots. The plats showed a causeway leading from the mainland to a road which proceeded around the perimeter of Island No. 1. There were other causeways leading to Islands Nos. 2 and 3, with roads around their perimeter. On each side of the roadways the area is marked off into lots. One row of lots has water frontage and another row has no water frontage. However, at regular intervals an open roadway or space is left between waterfront lots for the proposed owners of the interior lots to get down to the water. At the end of each roadway a proposed pier or boat dock is drawn on the plat. In the center of Islands Nos. 1 and 2, there is an area which is not divided into lots. These plats were prepared by appellees’ witness Bailey Cox, who testified that the actual drawing was done by one Alvin Fluery, an expert draftsman. There was no survey made on the ground. The islands have never been subdivided hut are still in raw acreage. The record does not show just when these plats were made, but it is obvious that they were made for use in the trial of the case. The plat introduced as Exhibit No. 55 is a duplicate of Exhibit No. 54, except that all of the lots having lake frontage have been colored according to Cox’s idea of their desirability for residences or campsites. The most desirable are colored in red, the next in green, and the least desirable in blue. There seem to be 367 lots in, all; 209 are lakefront and 158 are inside lots. Of the lakefront lots, 96 are in red, 78 in green, and 35 in blue. All of the inside lots were left uncolored. Cox testified that it was planned to reserve them for future sales. These plats were admitted over appellant’s objection, however, the trial court admitted them for the limited purpose of showing the adaptability of the land for subdivision purposes. We are of the opinion that these plats, under the record in this case, were not admissible for any purpose.

One of the most hotly contested issues in the case was whether or not these islands were adaptable for subdivision purposes. Appellant’s contention was that they were [452]*452not, and that their highest and best use was for agricultural and grazing purposes, the only use to which the islands had ever been put. It is undisputed that these islands were raw acreage land, unsubdivided, except in the minds of the drafters of these plats.

It has been repeatedly and consistently held, that where the property condemned is raw acreage it is not proper to admit in evidence hypothetical plats of nonexistent subdivisions, the reason being that they tend to cause the jury to value the land as lots. The jury is to value the tract of land, and that only. They are not to determine how it could best be divided into building lots, nor to conjecture how such lots could best be sold, nor for what price. Opinion testimony as to the value must be based upon the value of the land as an entirety and not in parcels, unless there is some reason to value it in parcels, such as differences in the nature of the land. City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808; Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 40 S.W. 391; Continental Development Corp. v.

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Bluebook (online)
357 S.W.2d 449, 1962 Tex. App. LEXIS 2439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lower-nueces-river-water-supply-district-v-collins-texapp-1962.