Nelson v. State

401 S.W.2d 880
CourtCourt of Appeals of Texas
DecidedMarch 16, 1966
Docket11376
StatusPublished
Cited by3 cases

This text of 401 S.W.2d 880 (Nelson 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
Nelson v. State, 401 S.W.2d 880 (Tex. Ct. App. 1966).

Opinions

HUGHES, Justice.

This is a condemnation proceeding by the State of Texas against Helen R. Nelson and husband, Harold S. Nelson, owners, and Joseph Y. Stateson and First Federal Savings and Loan Association of New Braun-fels, lienholders, to condemn the fee title, excluding oil, gas and sulphur, to 3.29 acres of land and to establish a drainage easement on an additional 1.644 acres out of a tract of land containing 65.29 acres. This land is located on the north side of Interstate Highway 35, approximately 5.1 miles west of the center of the City of New Braunfels.

The Commissioners awarded total damages in the sum of $4,850.00, which amount was deposited by the State and partially withdrawn by the parties entitled thereto.

In the trial below the jury found the total damages to be $2,103.00, the result being that judgment was rendered in favor of the [882]*882State for $2,747.00, the difference between the amount deposited by it and the amount of the jury verdict.

It is our opinion that this cause should be reversed and remanded for the reason that the trial court adopted an erroneous theory for the admission of testimony regarding recent sales of comparable property. The theory adopted by the trial court, and reflected in his rulings, was that recent sales in order to be comparable must be comparable in size to the parent tract of 65 acres and that sales, otherwise comparable, were inadmissible if they were comparable in size only to the smaller tracts which were actually taken.1

Mr. Jack Ohlrich, the State’s expert valuation witness, testified that there was no damage to the property not taken and that the damages to the land taken, in partial fee or by easement, was $2,103.00, the exact amount found by the jury.

Mr. Ohlrich testified that he valued the 3.29 acre tract “ * * * at the same value that I gave the entire farm of $300.00 per acre. * * * ”

On direct examination Mr. Ohlrich testified to sales which he considered comparable. The acreage involved in these sales was 58.3, 204, 219 and 87.8, respectively.

On cross examination Mr. Ohlrich was asked about a sale, of which he had personal knowledge, of a tract which compared in size with the tracts actually taken in fee or subjected to the drainage easement. This testimony was excluded.

The record shows the following to be the proffered testimony regarding this sale:

“Q Now Mr. Ohlrich, I believe you testified yesterday that on the sale of the property from Paul Fisher to the Santa Clara Land Company of a 4.011-acre tract, which was in January of 1963, that you handled that sale ?
A Yes, sir.
Q And I believe you testified that Mr. Fisher had a dairy farm there ?
A Not on the 4.0, but across the highway.
Q But the 4.011 acres was a part of the farm?
A Yes, sir.
Q At the time of the sale of this 4.011 acres to the Santa Clara Land Company, I believe you testified they were cutting hay off the four acres?
A That’s what I said.
Q Did you handle that sale?
A Yes, sir.
Q What was the consideration for that sale ?
A I believe it was $1,750.00 per acre.
Q $1,750.00 per acre?
A This is from memory. I think I am close.
Q Actually, now, I believe you further testified that the Fisher farm is on the same highway, Interstate 35, and is located adjacent to Interstate 35 as the Nelson farm? They are both on the same road?
A Yes.
[883]*883Q Are they not?
A It is on the opposite side.
Q On the opposite side of the road?
A Yes, sir.
Q And they are both on the west side of New Braunfels?
A That’s right.
Q And both on what we call the San Antonio highway between — on IH 35 between new Braunfels and San Antonio ?
A Yes, sir.
Q And I believe you testified yesterday, did you not, sir, that the distance between the Nelson farm and the Fisher farm at that time on Interstate 35 was about a half to three-quarters of a mile?
A Yes, sir.
Q Both on the same side of town?
A Yes, sir.
Q Both out in the country out there?
A Yes, sir.
Q Both within the area that you testified to yesterday between the City of San Antonio and the City of New Braunfels that has been developing at a progressively rapid pace since the post-war days after World War II?
A Yes, sir. I qualified the statement with the fact that there was lots of open land in between there.”

The Nelson property was pasture land on which was located a house, two barns, dairy barns, fences and other incidental improvements. None of the improvements, except fences, was on the land taken by the State.

In a condemnation suit where only a portion of the owner’s land is taken there are involved two distinct valuations, the value of the land taken and the value of the land remaining. As to the value of the land remaining, this is of importance only if its value Has been diminished as a result of the taking. Frequently, and perhaps usually, there is no difference in value between the value of the portion taken and the remainder. In such cases evidence as to the value of the entire tract is relevant and adequate for evaluating both the area taken and the remainder. Where, however, there are circumstances which give rise to an increased value for the portion taken over the value of the remainder evidence is admissible which is legally relevant to establish such value. In such cases, the average value of the entire tract is not adequate compensation for the land taken.

A simple example is the taking of a comparatively small area containing valuable improvements leaving a large remainder with no improvements. Clearly, the average value of the entire tract would not fairly compensate the owner for his loss.

If a 10,000 acre ranch fronts 1000 feet on a beautiful stream and this frontage and an adjacent 100 acres is condemned it would, in our opinion, be absurd to hold that the owner would not be permitted to show that this 100 acres had a value in excess of the average value of the 10,000 acres. It is just as absurd, in our opinion, to hold that the only comparable sales which could be shown would be sales of ranches of 10,000 acres with similar water frontage. It is our opinion that the sales of tracts similar to the 100 acre tract on the river would be comparable sales. We believe this view is sustained by the authorities. We quote the following from 4 Nichols on Eminent Domain, Sec. 14.231, p. 545:

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Related

City of Richardson v. Smith
494 S.W.2d 933 (Court of Appeals of Texas, 1973)
State v. Reeh
434 S.W.2d 416 (Court of Appeals of Texas, 1968)
Nelson v. State
401 S.W.2d 880 (Court of Appeals of Texas, 1966)

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401 S.W.2d 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-texapp-1966.