Mueller v. Central Power & Light Company

403 S.W.2d 901, 1966 Tex. App. LEXIS 2206
CourtCourt of Appeals of Texas
DecidedMay 26, 1966
Docket211
StatusPublished
Cited by11 cases

This text of 403 S.W.2d 901 (Mueller v. Central Power & Light Company) 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
Mueller v. Central Power & Light Company, 403 S.W.2d 901, 1966 Tex. App. LEXIS 2206 (Tex. Ct. App. 1966).

Opinion

OPINION

NYE, Justice.

This is a condemnation case in which the plaintiff Central Power & Light Company sought to condemn an easement of right-of-way for the purpose of erecting an electric transmission line across the land of the defendants. From an award of the special commissioners, appeal was perfected to the County Court of Calhoun County. The parties stipulated to all the jurisdictional matters, and then proceeded to trial on the sole issue of damages.

The damage issues were submitted to the jury in the substantial form following those approved in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194. After judgment was rendered on the jury verdict, the landowners filed a motion for new trial asserting a number of errors. However, on appeal to this court they elected to waive all errors set forth in their motion for new trial, excepting one point. Appellants’ only point pertains to the introduction into evidence of an easement grant which showed the consideration paid by Central Power & Light Company to the appellant landowners for a previous negotiated easement of right-of-way across appellants’ property.

Central Power & Light Company in its petition for condemnation of the subject easement of right-of-way, contended that it owned and held an easement for an electric transmission line now located upon appellants’ property (the previous easement grant); that in connection with the construction of this additional electrical transmission line, it would be necessary to construct an extension to the existing line and to relocate a section thereof to a new location.

During the course of the trial, the appellant landowners were the first to go into this previous easement grant. Questions to appellant by appellants’ attorney:

“Q Let me ask you whether or not you are familiar with the fact that prior to August 2nd, 1962, there was a utility line already on your property.
A Prior to August, 1962, yes, sir, I am.
Q Were you one of the parties to granting that easement?
A I was
Q And—
A I negotiated it with Mr. Reuman from the Central Power & Light Company
Q And what was the date of that easement?
A * * * it is dated October 15, 1953.”
* * * * * *
“MR. MALLETTE: (appellants’ attorney) I want him to read some excerpts, *903 do you want me to go get the Deed Records at noon, and have him read from the original? Or will you accept a copy, or if you have one in your file, I will read yours (to Mr. Howard) ?
MR. HOWARD: (appellee’s attorney) Your Honor, I do not know what the purpose of this is, going into a voluntary deal back in 1951.
JUDGE: What is the purpose of this?”

The record shows that at this point there was a recess for lunch. Then immediately following this recess the following statement by appellee’s attorney appeared in the record.

“MR. HOWARD: In order to speed things up, we will agree to admit all the easement grant, the 1953 easement grant that was executed in favor of Central Power & Light Company by Arthur W. Mueller.” (the appellant)

Thereafter excerpts of this easement agreement favorable to the appellant landowners were read to the jury by their attorney. The attorney for the appellee company then cross-examined the appellant concerning this same instrument.

Appellant answered “ * * * It appears to be the same instrument from which I read a minute ago, recorded in Volume 90, pages 329-333.

“MR. HOWARD: (Appellee’s attorney) We offer this in evidence.
MR. MALLETTE: (appellants’ attorney) We object.
JUDGE: It will be admitted.”

The above objection forms the basis of the appellant landowners’ appeal.

Appellants argue that this above instrument admitted into evidence over their objection, was a right-of-way grant given some eight years before this case, and it covered a similar easement showing therein that the consideration paid was only $1500.-00. Appellants argue that it is therefore obvious that the admission into evidence of the consideration paid by the same con-demnor, the appellee herein, to the same condemnees, the appellants here, on the same property for a similar easement more than eight years prior to the taking in the instant case, was calculated to cause and did prejudice the appellants herein, thereby preventing them from having a fair determination of their damages by the jury. Appellants argue that the great weight of authority in Texas stands to the proposition that sales made under threat of condemnation are not admissible in condemnation proceedings because they are not voluntary and cannot and do not reflect accurately the market value of the property in question. Citing Phelps v. State, 157 S.W.2d 955, Tex.Civ.App.1942, n. w. h.; City of Dallas v. Malloy, 214 S.W.2d 154, Tex.Civ.App.1948, err. dism.; Robards v. State, 285 S.W.2d 247, Tex.Civ.App.1955, ref. n. r. e. The record here is silent as to any threat of condemnation concerning this previous easement grant. As will be shown hereafter, this sale had no effect on the value of the property as found by the jury that would prejudice the appellants.

Appellants further argue that since this previous easement grant covered 4.1 acres of ground, then by mathematical computation based on the consideration paid by Central Power & Light Co. of $1500.00, it would show that the price per acre would only be $365.85. Appellants’ expert witness testified that the value was $750.00 per acre. Therefore, appellants say, that it is obvious that they were harmed by permitting this evidence to let in. This contention is without merit. First of all the purported objectionable easement grant does not state the amount of acreage involved therein. It was a metes and bounds description and only the parties knew the total acreage involved. Next the easement grant stated that it allotted a consideration of only $210.00 for the easement taken with the balance of $1290.00 paid as special damages. That would only be approximately $50.00 per acre. Appellee’s expert witnesses *904 testified that the reasonable market value of the property ranged generally from $150.00 to $397.00 per acre and with one comparable sale being higher than $400.00 per acre. Yet the jury’s answers to appellants’ damages were based upon a figure of $400.00 per acre. Appellants even concede in their brief that there was sufficient evidence in the record to justify the jury making the smaller award (i. e. $400.00 per acre as compared to their appraisal witness’s figures of $750.00 per acre).

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Bluebook (online)
403 S.W.2d 901, 1966 Tex. App. LEXIS 2206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mueller-v-central-power-light-company-texapp-1966.