PAN AMERICAN GAS COMPANY v. Lobit

450 S.W.2d 877
CourtCourt of Appeals of Texas
DecidedJuly 11, 1969
Docket15500
StatusPublished
Cited by7 cases

This text of 450 S.W.2d 877 (PAN AMERICAN GAS COMPANY v. Lobit) 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
PAN AMERICAN GAS COMPANY v. Lobit, 450 S.W.2d 877 (Tex. Ct. App. 1969).

Opinions

PEDEN, Justice.

This is an eminent domain proceeding brought by the appellant, Pan American Gas Company, to acquire an easement thirty feet wide for construction of a high pressure gas pipeline across three tracts owned by appellee, Louis G. Lobit. The tracts were considered as one although Lot 4A was separated from Lots 5A and 6A by a short distance. The leasehold interest of A. J. Hungerford in part of the same land was also condemned; he did not appeal [879]*879from the judgment awarding him no recovery.

Appellant’s first five points of error are based on its allegation that there were fatal deficiencies in the landowner’s evidence in that H. J. Thomas, the only witness who testified for appellee as to land values, failed to testify as to the value of the easement area as severed land before and after it was taken and failed to testify as to the value of the remainder of the tract, exclusive of the easement area, before and after the easement was taken. Appellant’s first point of error is that the trial court erred in overruling its motion to strike Thomas’ testimony because of these deficiencies, and its second point is that the trial court should have granted its motion for judgment non obstante veredicto because of the same deficiencies.

We will summarize Thomas’ testimony. He has been in the business of buying, selling and appraising real estate continuously since 1956 in nearby Dickinson, Texas. He displayed a map showing that the three tracts in question run in a generally north and south direction and lie north of and adjoining Highway FM 517, which runs between Alvin and Dickinson. Each of the tracts is over two miles in depth and has comparatively narrow frontage on FM 517. Lot 4A contains 118.7 acres; Lobit owns 151.65 acres of Lot 5A, and Lot 6A contains 212.3 acres. The lot located between 4A and 5A is Lot 4. Its south part is a residential subdivision of half-acre lots. That portion of the south part of Lot 5A which is not owned by Lobit is also being subdivided. Thomas is familiar with sales of property in the area and with the subject property.

The highest and best use of the Lots 4A, 5A and 6A is as residential subdivisions. There are some producing oil and gas wells in the north part of the subject lots. Before the date of taking, which was September 17, 1967, there would be no substantial difference between the values of the three lots.' Their market value was approximately $1500.00 per acre, or approximately $178,-050.00 for the 118,7 acres in Lot 4A and approximately $524,000.001 for the 363.95 acres of Lots 5A and 6A. After the taking, i. e., after a twenty-inch high pressure gas pipeline crossed the tracts diagonally in their southerly portion, the value of the whole tract would be reduced by $100.00 per acre, despite the fact that there were other pipelines on the tracts before the taking by Pan American. The value after this taking would be approximately $166,000.00 2 for Tract 4A and approximately $488,200.-00 3 for Tracts 5A and 6A.

In making his estimation of values he took into consideration the other two pipelines already in place on the subject property. One of them parallels the new Pan American line and the other comes down to the old line from the wells on the north part of the property. The property fronting on Highway 517 would be damaged by putting in this high pressure gas line proportionally the same as that part of the property fronting on the north bound[880]*880ary line; each acre would be damaged at the rate of approximately $100.00.

The highest and best use of the subject property is still for smal acreage residential property. Construction of the pipeline and taking of the easement reduces the number of lots that can be platted.

Maco Stewart bought the south part of Tract 13, 189 acres, for $1500.00. It adjoined property that he already owned, and 700 feet or so of it adjoined the Gulf Freeway. Thomas did not testify further.

The easement taken was 30 feet wide and 1,934 feet long. As noted, it covered .35 of an acre of Lot 4A and .98 of an acre of Lots 5A and 6A for a total of 1.33 acres. The pipeline was to be 20 inches in diameter and was to be buried to a depth of not less than 36 inches. Lobit could not “build, create, construct or permit to be built, created or constructed, any obstruction, building, lake, engineering works or other structure over or on the right-of-way.”

Appellant’s first point of error is that the trial court erred in denying appellant’s motion to strike Thomas’ testimony because he failed to testify as to the value of the easement as severed land before and after the taking and failed to testify as to the value of the remainder before and after the taking.

Appellee concedes that Thomas did not testify as to the value of the land subject to the easement after the taking. It is also clear that he did not testify as to the value — considered as severed land — of the 1.33 acre strip before the taking. “The introduction of evidence bearing on this issue should be kept within the framework of the issue submitted.” State v. Walker, Tex., 441 S.W.2d 168 (1969). “It is well settled that ‘the value of the part taken should be ascertained by considering such portion alone, and not as a part of the larger tract? * * State v. Meyer, 403 S.W.2d 366 (Tex.Sup.1966).

As to Lobit’s land outside the easement, it consists of 481.32 acres, and it is merely a matter of arithmetic to calculate from Thomas’ appraisal that its value before the taking was $721,980.00 and its value after the taking was $673,848.00. Subtracting the lesser figure from the greater, we find that Thomas’ testimony would support a judgment that the damage to the remainder was $48,132.00. In Tennessee Gas Transmission Co. v. Nilson, 151 Tex. 446, 251 S.W.2d 503 (1952), the Texas Supreme Court pointed out that the verdict in that case might conceivably have been upheld (as to damage to the remainder) if the testimony had been “considering the value which the whole tract would otherwise have for residential subdivision purposes, and considering also the adverse effect for such purposes of both the old and the new pipe lines, the ‘before’ value of the entire tract was an amount equivalent to $300.00 per acre and the ‘after’ value the equivalent of $200.00 per acre.” * * * “Doubtless, too, the ‘before and after’ values found in respect of an entire tract may properly be based on testimony that discloses an actual diminution of value restricted to a few acres within that tract, though the question of counterbalancing the value decrease of the part by a possible value increase of the remainder naturally also enters into the picture. In other words, there is, generally speaking, no reason why a loss of ‘X’ dollars in respect of a mere part of an entire tract may not be a loss of the same amount in respect of the entire tract and therefore be properly stated in terms of the latter.”

We overrule appellant’s first point of error. The trial judge was correct in overruling appellant’s motion to strike the testimony of H. J. Thomas; it contained valid evidence of the value of Lobit’s land outside the easement strip, both before and after the taking.

We also overrule appellant’s second point. Appellant’s motion for judgment non obstante veredicto, based on the alleged deficiencies in appellee’s proof of damages [881]

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PAN AMERICAN GAS COMPANY v. Lobit
450 S.W.2d 877 (Court of Appeals of Texas, 1969)

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Bluebook (online)
450 S.W.2d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pan-american-gas-company-v-lobit-texapp-1969.