Religious of the Sacred Heart of Texas v. City of Houston

836 S.W.2d 606, 35 Tex. Sup. Ct. J. 1066, 1992 Tex. LEXIS 94, 1992 WL 148107

• Court: Texas Supreme Court
• Decided: July 1, 1992
• Docket: D-1320
• Status: Published

Opinions

OPINION

HIGHTOWER, Justice.

This is a condemnation action involving the partial taking of a private school for the purposes of extending a roadway. The case was submitted to the jury on the theory that the condemnee was entitled to compensation for the cost of purchasing substitute facilities. The jury returned a verdict for the condemnee in the amount of $18,-451,398. The condemnor appealed, arguing, among other things, that the trial court erred in applying the substitute facilities doctrine to the partial taking of a private school. The court of appeals reversed, holding that the substitute facilities doctrine did not apply. 811 S.W.2d 734. The primary question for our determination is whether the substitute facilities doctrine applies to the partial taking of a private school. We hold it does not. We must also consider whether the condemnor waived the application of any theory of compensation other than the substitute facilities doctrine. We hold it did not. We affirm the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

I.

Religious of the Sacred Heart of Texas d/b/a Duchesne Academy (“Duchesne”) is a private school for girls from pre-kinder-garten through high school. Duchesne has operated since 1960 on 14.786 acres of land within the City of Houston (“the City”). To the north of the campus lies Buffalo Bayou, to the south is Memorial Drive, to the west is the Memorial Creole Apartments, and to the east are townhomes.

In 1988, the City commenced condemnation proceedings on 1.479 acres of Du-chesne’s campus. The City sought the property for the purpose of extending Chimney Rock Road from Memorial Drive to the Katy Freeway. The condemned tract included a parking lot, building, and playground. The condemnation also separated a .689 acre strip of land from the remainder of the campus. Duchesne contended that the strip was rendered useless. Duchesne also contended that an educational building located less than six feet from the new Chimney Rock right of way was rendered useless. Lastly, Duchesne contended that the remainder of the campus suffered substantial damages resulting from, among other things, increased noise and air pollution.

The county court at law¹ appointed a three-person panel of special commissioners to determine the appropriate compensation. See Tex.Prop.Code Ann. § 21.014 (Vernon 1984). The special commissioners determined that Duchesne should receive $7,250,000. Duchesne and the City appealed.²

At trial the City contended that the remainder of the campus could be restored to its pre-taking utility by rebuilding the facilities taken and relocating many of the remaining structures. City experts testified that under this “cost to cure” theory, Du-chesne was entitled to $4,400,000. Du-chesne did not agree that the campus could be restored to its pre-taking utility on the remaining 12.618 acres. Duchesne argued that it needed to acquire a 7.9073 acre tract of land adjacent to the campus — the tract on which the Memorial Creole Apartments was located. Its theory was that under the “substitute facilities doctrine”, it was entitled to compensation for the cost of acquiring the adjacent land. There was testimony that the owner of the apartments would sell the property for $12,055,470 ($35.00 per square foot). Duchesne’s experts testified that the total cost of acquiring the land, demolishing the apartments, developing the site, and restoring the campus was $19,789,245. The City’s theory differed from Duchesne’s in that the City argued that under no circumstances was Duchesne entitled to compensation for the cost of acquiring substitute land. Accepting Duchesne’s theory, the trial court submitted the case to the jury on a single question:

What do you find from a preponderance of the evidence was the reasonable cost on February 18,1988, of land, if any, and improvements, if any, reasonably necessary to restore the remaining land and improvements at Duchesne Academy to substantially the same function and use that existed at Duchesne Academy before the City’s taking of 1.479 acres of land and improvements thereon for construction and use of Chimney Rock Road?

In response to this question the jury awarded Duchesne $18,451,398. The City appealed, arguing, among other things, that the trial court erred in submitting the case to the jury on the substitute facilities doctrine. The court of appeals reversed and remanded, holding that the substitute facilities doctrine does not apply to the partial taking of a private school. 811 S.W.2d 734.

II.

Duchesne argues that the substitute facilities doctrine should apply to the partial taking of a private school. We disagree. The substitute facilities doctrine provides that in certain limited circumstances the proper measure of compensation is the reasonable cost of acquiring a substantially equivalent substitute facility. It has generally been applied when public facilities are being condemned. See 4 Nichols, Nichols on Eminent Domain, § 12C.01[3][d] (3d ed. 1978); Annotation, Eminent Domain: Cost of Substitute Facilities as Measure of Compensation Paid to State or Municipality for Condemnation of Public Property, 40 A.L.R.3d 143 (1971). In this case, however, Duchesne contends that the doctrine should be applied to the partial taking of a private school.

The roots of the substitute facilities doctrine stem from Brown v. United States, 263 U.S. 78, 44 S.Ct. 92, 68 L.Ed. 171 (1923). Brown involved the flooding of three-quarters of a town in conjunction with the construction of a reservoir. 263 U.S. at 80, 44 S.Ct. at 93. The United States sought to condemn 120 acres of Brown’s land for the purpose of rebuilding the town. 263 U.S. at 81, 44 S.Ct. at 93. Brown argued that such a taking was not for public use and therefore unconstitutional. 263 U.S. at 81, 44 S.Ct. at 93. After noting how “peculiar” the circumstances of the case were, as well as describing the particular problems associated with the taking of a city, the Supreme Court held that a “method of compensation by substitution would seem to be the best means of making the parties whole.” 263 U.S. at 82-83, 44 S.Ct. at 94.

The Supreme Court again visited the doctrine in United States v. 564.54 Acres of Land, 441 U.S. 506, 99 S.Ct. 1854, 60 L.Ed.2d 435 (1979) (“Lutheran Synod”). Lutheran Synod involved the condemnation of three private, nonprofit, summer camps. The condemnee argued that because the camp was a nonprofit organization, it was absolutely entitled to a substitute facilities measure of compensation. 441 U.S. at 508, 99 S.Ct. at 1855. The Supreme Court disagreed, holding that the condemnee’s nonprofit status was not a basis for distinguishing it from other business enterprises. The Supreme Court observed:

[Tjhere is no reason to treat respondent differently from the many private homeowners and other noncommercial property owners who neither derive earnings from their property nor hold it for investment purposes. Unless the Just Compensation Clause mandates a Government subsidy for nonprofit organizations, a proposition we find patently implausible, respondent’s nonprofit status does not require us to reject the application of the fair-market-value standard.

441 U.S. at 515, 99 S.Ct. at 1859. The Supreme Court also rejected the argument that additional compensation was warranted because the camps were reasonably necessary to the public welfare. 441 U.S. at 515, 99 S.Ct. at 1859. Unable to ascertain any rationale requiring the suspension of the normal rules for determining just compensation, the Supreme Court held that the fair market value measure applied. 441 U.S. at 515, 99 S.Ct. at 1859. Specifically left unanswered, however, was the proper measure of compensation for the condemnation of public property. 441 U.S. at 509 n. 3, 99 S.Ct. at 1856, n. 3.

This question was resolved in United States v. 50 Acres of Land, 469 U.S. 24, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984). 50 Acres involved the taking of land used as a sanitary landfill by the City of Duncanville, Texas. 469 U.S. at 26, 105 S.Ct. at 453. Duncanville argued that, as a public entity, it was automatically entitled to compensation for the cost of acquiring a substitute site. 469 U.S. at 26-27, 105 S.Ct. at 453. The Supreme Court rejected this argument, holding that “[n]othing in Brown implies that the Federal Government has a duty to provide the city with anything more than the fair market value of the condemned property.” 469 U.S. at 33, 105 S.Ct. at 456-57. Although 50 Acres rejected the premise that the substitute facilities doctrine automatically applies to all takings of public property, the Supreme Court did not resolve whether the doctrine retains any applicability. See 469 U.S. at 37, 105 S.Ct. at 458 (O’Connor, J., concurring).

In Texas, the substitute facilities doctrine has been discussed in two cases. The doctrine was first applied in State of Texas v. Waco Indep. School Dist., 364 S.W.2d 263 (Tex.Civ.App.—Waco 1963, writ ref’d n.r.e.). Relying in part on Brown, the court of civil appeals held that because a duty existed to rebuild the taken premises, a public school was entitled to compensation for the cost of acquiring additional land. Id. at 268. The second case was City of San Antonio v. Congregation of the Sisters of Charity, 404 S.W.2d 333 (Tex.Civ.App.—Eastland 1966, no writ). City of San Antonio involved an appeal from a temporary injunction enjoining the condemnor from exercising its power of eminent domain over land belonging to a private school. Id. at 334. In support of its holding that the statute providing the measure of compensation was constitutional, the court stated:

We do not believe that it was the holding in the Waco case, even by implication, that the owner of a private school whose land is condemned is ... limited to a recovery under the market value test if the evidence shows that such test will not adequately compensate the owner for special damages suffered_ The proper measure of damages for taking part of the land of a private school, where special damages are suffered, is the same as it is in like cases where the land of a public school is taken.

Id. at 337.

Duchesne relies heavily upon City of San Antonio, arguing that it was properly decided and should be applied to this case. Duchesne also asserts that the limitations on the application of the substitute facilities doctrine recognized in Lutheran Synod and 50 Acres are not determinative since both cases involved situations in which there was evidence of “market value”.³ Thus, Duchesne concludes that the substitute facilities doctrine remains applicable in any condemnation case in which no evidence of “market value” is presented. This is not correct. Nothing in Lutheran Synod or 50 Acres supports such an application of the substitute facilities doctrine. Lutheran Synod rejected the automatic application of the doctrine to nonprofit private entities, while 50 Acres rejected the automatic application of the doctrine to public property. Duchesne’s assertion that the substitute facilities doctrine can somehow apply if there is no evidence of “market value” misinterprets the broad concept of market value. See infra at 610. It also fails to recognize that when the Supreme Court uses language such as “fair market value is not ascertainable”, it is only stating that there is a lack of comparable sales to utilize the market data approach to determining market value. In United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U.S. 396, 70 S.Ct. 217, 94 L.Ed. 195 (1949), the Court stated:

At times, however, peculiar circumstances may make it impossible to determine a “market value.” There may have been, for example, so few sales of similar property that we cannot predict with any assurance that the prices paid would have been repeated in the sale we postulate of the property taken. We then say that there is “no market” for the property in question.... And it is here that other means of measuring value may have relevance — but only, of course, as bearing on what a prospective purchaser would have paid.

We agree ... that in this case there was no Great Lakes “market” in the sense discussed above.

338 U.S. at 402, 70 S.Ct. at 221.⁴ In Lutheran Synod, the Court looked to the fact that there were “11 recent sales of comparable facilities” in holding that the property had a “readily discernable market value.” Lutheran Synod, 441 U.S. at 513, 99 S.Ct. at 1858. Likewise, in 50 Acres, the Court looked to testimony regarding “the sale prices of comparable property” in holding that the property had a market value. 50 Acres, 469 U.S. at 30, 105 S.Ct. at 455. Consequently, in neither of these cases was there a need for the Court to look to other methods of determining market value. Of additional significance is that in 50 Acres the court noted the existence of the cost method of determining market value, stating: “Of course, we express no view on the admissibility of testimony on reproduction cost when it is offered on the issue of fair market value.” 469 U.S. at 36 n. 24, 105 S.Ct. at 458 n. 24 (emphasis added). This state also recognizes the cost approach as a valid method of determining market value. See infra at 616. Consequently, Du-chesne’s assertion that the substitute facilities doctrine applies when there are no comparable sales is erroneous.

Additional language in 50 Acres supports our rejection of the doctrine in this context. In regard to the general applicability of the doctrine, the court stated:

[T]he open-ended character of the substitute-facilities standard increases the likelihood that the city would actually derive the windfall that concerned both the District Court and the Court of Appeals. “Particularly is this true where these issues are to be left for jury determination, for juries should not be given sophistical and abstruse formulas as the basis for their findings nor be left to apply even sensible formulas to factors that are too elusive.”

469 U.S. at 36, 105 S.Ct. at 458 (footnote omitted).⁵ Furthermore, specifically in regard to private condemnees, the Court cited Lutheran Synod for the proposition that:

If the city were a private party rather than a public entity, however, the possibility that the cost of a substitute facility exceeds the market value of the condemned parcel would not justify a departure from the market value measure.

469 U.S. at 30, 105 S.Ct. at 455. The court also stated:

This view is consistent with our holding in Lutheran Synod that fair market value constitutes “just compensation” for those private citizens who must replace their condemned property with more expensive substitutes....

469 U.S. at 33, 105 S.Ct. at 457. We believe this language sounds the death knell for the application of the substitute facilities doctrine to private property. For these reasons, we reject Duchesne’s contention that 50 Acres somehow implies that the substitute facilities doctrine can be applied to takings of private property when market value cannot be determined by the market data approach.⁶ The commentators are also uniform in stating that, as a result of Lutheran Synod and 50 Acres, the continued viability of the doctrine is questionable. See M. Schill, Intergovernmental Takings and Just Compensation: A Question of Federalism, 137 U.Pa.L.Rev. 829, 889-97 (1989) (discussing “demise” of the doctrine); J. Durham, Efficient Just Compensation as a Limit on Eminent Domain, 69 Minn.L.Rev. 1277, 1291 (1985) (although disagreeing with Court, cites 50 Acres “as an indictment of the substitute-cost measure of valuation”); J. Payne, Intergovernmental Condemnation as a Problem in Public Finance, 61 Tex.L.Rev. 949, 1010 (1983) (stating that the “analytic foundations of the substitute facilities doctrine have recently been questioned”); J. Gelin & D. Miller, The Federal Law of Eminent Domain, § 3.6 (1982) (“[Lutheran Synod ] is only precedent for not using substitute valuation when the government condemns property owned by a private nonprofit organization and operated for a public purpose.”).

Thus, armed only with City of San Antonio as authority,⁷ Duchesne asks us to apply its holding and broaden a doctrine that the Supreme Court has recently limited, criticized as providing a windfall, and labelled “a dictum”. See 50 Acres, 469 U.S. at 31, 36, 105 S.Ct. at 456, 458. City of San Antonio floats alone in a sea of contrary authority. It was decided without citation to authority and has not been affirmatively relied upon by any court.⁸ In fact, numerous courts have rejected the use of the substitute facilities doctrine in cases involving private property. See, e.g., People v. Young Women’s Christian Ass’n of Springfield, 74 Ill.2d 561, 25 Ill. Dec. 649, 655, 387 N.E.2d 305, 311 (1979) (doctrine inapplicable to condemnation of land and buildings owned by YWCA); State of Oregon v. First Methodist Church of Ashland, 6 Or.App. 492, 488 P.2d 835, 836-37 (1971) (doctrine inapplicable to condemnation of church youth center); Urban Renewal Agency v. Gospel Mission Church and School, 4 Kan.App.2d 101, 603 P.2d 209, 212-14 (1979, review denied) (doctrine inapplicable to taking of church). Even Duchesne admits that besides City of San Antonio it possesses a dearth of authority in support of its position. We refuse to reach a result that would significantly broaden the scope of a waning doctrine. For these reasons, we hold that the substitute facilities doctrine does not apply to the taking of a private school.

III.

Duchesne also argues that even if the substitute facilities doctrine does not apply, the City waived the application of any other theory of compensation. We disagree.

The correct measure of compensation was a sharply contested issue throughout trial. The record is replete with objections indicating the lengths to which the City went to preserve error regarding the erroneous use of the substitute facilities doctrine.⁹ There can be no doubt that the City properly apprised the trial court of its objection to the erroneous use of the substitute facilities doctrine. The question, therefore, becomes whether the City, to properly preserve error, possessed a burden to submit a correct alternative measure of compensation. If the City had such a burden and failed to submit such a measure, Duchesne is correct in arguing that the City is stuck with the substitute facilities doctrine. If the City did not have such a burden or if it submitted a correct alternative theory of compensation, Duchesne’s waiver argument fails.

While the burden of proof regarding the right to condemn and certain other matters is generally on the condemnor, the “burden as to value is on the condemnee.” Miers v. Housing Authority of City of Dallas, 153 Tex. 236, 266 S.W.2d 842, 845 (1954). In this regard, when the only questions submitted relate to market value and damages, the condemnee has the right to open and close the jury argument. See, e.g., Phillips v. Southwestern Bell Telephone Co., 559 S.W.2d 464, 465 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ). See also City of Fort Worth v. Beaupre, 617 S.W.2d 828, 832 (Tex.Civ.App.—Fort Worth 1981, writ ref’d n.r.e.) (by failing to tender, condemnor waived objection to trial court’s failure to submit instruction stating that burden of proof on condemnee). In the first edition of his treatise, Judge Rayburn stated:

[Rjegardless of whether there is a stipulation or not, if the issues are submitted in the usual form as to value, and there is no dispute as to the jurisdiction, power, or authority of the condemnor to exercise the authority of condemnation, and the issues are merely submitted on value of the land taken, and the damages to the remaining lands if any, in that case, the charge submits only matters on which the condemnee has the burden of proof, and condemnee has the right to proceed with his evidence first, and to open and close the arguments, not by reason of the stipulation, or the lack of it, but by reason of the force of the wording of the Rules of Civil Procedure.

M. Rayburn, Texas Law of Condemnation, § 83 (1960) (emphasis in original). Although the record does not contain a stipulation, the parties were aware that Du-chesne had the burden of proof. Duchesne opened first, presented its case first, and closed first. In fact, at a pre-trial hearing counsel for Duchesne stated: “I’ve had jury panels who thought that it’s the property owner who is suing to get the compensation because of the way the burden of proof is ...” (emphasis added).

Also relevant is the fact that Duchesne withdrew the award of the special commissioners. We have held that if the con-demnee withdraws the award, as Duchesne did, the condemnee waives all issues other than the adequacy of the compensation. State v. Jackson, 388 S.W.2d 924, 925 (Tex.1965). We also noted in Jackson that in such a situation the burden of proof lies with the condemnee. Id. at 926; see also Coastal Indus. Water Auth. v. Celanese Corp., 592 S.W.2d 597, 599 (Tex.1979).

Consequently, since the burden of proof regarding compensation was with Du-chesne, we must determine the City’s burden in objecting to the erroneous submission of the charge on the substitute facilities doctrine. In the condemnation context, the condemnor need only specifically object to the use of an incorrect measure of compensation. See Brazos Electric Power Cooperative, Inc. v. Taylor, 576 S.W.2d 117, 119-20 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.) (condemnor’s objection that “the charge fails to submit the proper measure of damages” too general); State v. Dunn, 574 S.W.2d 821, 825 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.) (absent specific objection, condemnor waived complaint that charge allowed double recovery); Southwestern Bell Telephone Co. v. Ramsey, 542 S.W.2d 466, 475-76 (Tex.Civ.App.—Tyler 1976, writ ref’d n.r.e.) (con-demnor’s requested issues, even if in correct form, are not a substitute for an objection). Cf. Gandy v. State, 293 S.W.2d 534, 538 (Tex.Civ.App.—Waco 1956, writ ref’d n.r.e.) (condemnee’s failure to submit correct issue constitutes waiver of complaint regarding proper measure of damages).

The rule stated in these condemnation cases is consistent with the general rules regarding the preservation of error in the charge. This case involved a defectively submitted question. Therefore, only a specific objection was necessary. The rule applicable in this situation was properly stated in Lyles v. T.E.I.A., 405 S.W.2d 725 (Tex.Civ.App. — Waco 1966, writ ref’d n.r.e.):

[A] request for submission is the method of preserving the right to complain of omission of, or failure to submit an issue which is relied on by the complaining party. Objection, however, is the proper method of preserving complaint as to (1) an issue actually submitted, but claimed to be defective; or (2) failure to submit, where the ground of recovery or defense is relied on by the opposing party.

Id. at 727 (emphasis added); see also Cosgrove v. Grimes, 774 S.W.2d 662, 665-66 (Tex.1989) (although damages issues defectively submitted, defendant “failed to object to them by distinctly pointing out any error”); Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987) (although erroneous measure of damages submitted, defendant “waived any error in the submission by failure to properly object”); American Transfer & Storage Co. v. Reichley, 560 S.W.2d 196, 199-200 (Tex.Civ.App.—Amarillo 1977, writ ref’d n.r.e.) (“Unless a party objects to the charge on the ground that it submits an improper measure of damages, he waives the objection and cannot complain on appeal that the charge permitted the jury to find damages based on the wrong measure.”). The City explicitly objected to the charge on the ground that the substitute facilities doctrine did not apply to private schools. We hold that this objection was sufficient to preserve error regarding the erroneous submission of the case on the substitute facilities doctrine. Because of this holding, we need not consider whether the City’s proposed charge was a correct statement of the law.¹⁰

Duchesne raises an additional issue warranting our consideration. Duchesne strongly asserts that the City failed to offer any evidence regarding the market value measure of compensation and that its experts admitted the inapplicability of the market value measure of compensation.¹¹ We have previously noted that the City did not have the burden to offer a correct measure of compensation. Furthermore, Duchesne’s argument that the City admitted the inapplicability of the market measure of compensation confuses the broad concept of “market value” with “market data”, the most common of the approaches used in determining “market value”.¹² In his treatise, Nichols states:

[Tjhere are a number of approaches used in the valuation of condemned properties, namely, the market data or comparable sales approach, the cost approach, and the income approach.... [I]t should be noted that the market data approach, the usual approach in residential takings, is ordinarily modified in cases of special use property and proof based on the other methods is usually allowed. A further modification may be the use of the substitute method. No matter which method is used, however, it must also be remembered that they are all merely factors to be considered in arriving at the value of the property.

4 Nichols, Nichols on Eminent Domain, § 12C.01[3] (3d ed. 1978) (emphasis added). As an alternative to the market data approach, Nichols describes the cost approach as follows:

Where a building is a specialty, and, in a sense, unique, [constructed for a special purpose, the valuation cannot be predicated on the same basis as a building constructed for general or usual dwelling or commercial use. In the case of a specialty there is a limited market and the customary testimony of market price is not available. It has been held under such circumstances that reproduction cost, or replacement cost, minus depreciation, may be considered. It may even be the only method in some situations. However, it must be remembered that the value arrived at by use of this approach is merely a factor to be considered and is not the sole measure of compensation.

Id. at § 12C.01[3][b]. Another commentator writes:

[I]n the absence of sales prices of similar property, the court must find some other criterion of value, and of these the most acceptable is the replacement cost of the property taken.... Accordingly, in these cases we find the courts estimating the value of the land separately on the basis of the sale price of other similar land in the vicinity and adding thereto the cost of reproduction less depreciation of the structure in order to arrive at the value of the entire property.

2 Orgel, Valuation Under the Law of Eminent Domain, § 246 (2d ed. 1953); see also id. at § 38 n. 7 (citing cases “distinguishing between ‘market value in a strict sense’, which is lacking in the absence of an active market, and market value in a broad sense.”); J. Gelin & D. Miller, The Federal Law of Eminent Domain, § 4.1 (1982) (“There are three common methods of valuing property taken under the power of eminent domain. Each of these methods is designed to reach the fair market value ...”). Additionally, an appraisal manual discusses the issue as follows:

In assignments to estimate market value, the ultimate goal of the valuation process is a well-supported value conclusion that reflects the appraiser’s study of all factors that influence the market value of the property being appraised. To achieve this goal, an appraiser studies a property from three different viewpoints, which correspond to three traditional approaches to value.

1. The value indicated by recent sales of comparable properties in the market— the sales comparison approach.

2. The current cost of reproducing or replacing the improvements, minus the loss in value from depreciation, plus land value — the cost approach.

3. The value of the property’s earning power based on the capitalization of its income — the income capitalization approach.

American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 62 (9th ed. 1987); see also id. at 349 (“The cost approach is also used to estimate the market value of proposed construction, special purpose properties, and other properties that are not frequently exchanged in the market.”).

Texas also recognizes the existence of various methods of determining market value. Judge Rayburn states:

An analysis of the cases discloses that there are four main types of evidence that are allowed to be introduced into evidence as bearing upon the hypothetical market issues and that have been, and are frequently and customarily used by expert real estate witnesses to substantiate their market value opinions.... These four types of evidence are:

(1)Comparative market sales;

(2) Replacement cost less depreciation. ...

(3) Capitalization of income....

(4) Real, actual or intrinsic value....

M. Rayburn, Rayburn on Condemnation, § 16.00 (1987).¹³ In discussing the cost approach, Rayburn writes that its use is proper as long as it is made clear to the jury that the “ultimate point of inquiry and decision is market value....” Id. at § 16.04 (emphasis in original). This court has also discussed the distinction between the broad concept of market value and the various approaches used in its determination. In City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954), we stated:

Market value is not restricted to prevailing price.... It was clearly error to instruct the jury that the 4.57 acre tract had no market value unless the evidence revealed “a sufficient number of recent sales of comparable property to establish a prevailing price.”

267 S.W.2d at 812; see also Huckabee v. State, 431 S.W.2d 927, 930-32 (Tex.Civ.App.—Beaumont 1968, writ ref’d n.r.e.) (error to exclude expert testimony regarding the various approaches in determining market value); State v. Richardson, 215 S.W.2d 359, 361 (Tex.Civ.App.—Eastland 1948, writ ref’d n.r.e.) (“But it does not necessarily follow that in the absence of such [comparable] sale or sales, the tract involved had no market value. By sale or sales of entirely similar tracts is not an exclusive method of proving market value.”).¹⁴

The City’s admission that schools are not sold on the open market and its failure to provide evidence regarding comparable sales do not, as Duchesne suggests, constitute a waiver of the market value measure of compensation. This case presents a unique situation involving the partial taking¹⁵ of a special purpose¹⁶ property. The City correctly recognized that the most common method of determining market value — the market data approach — could not be successfully utilized in this situation. Consequently, the City concluded that resort to additional methods of determining market value was necessary. At trial, the City argued the applicability of these methods and offered evidence regarding their application. We hold that the City did not waive the market value measure of compensation.¹⁷

IV.

The broad concept of market value, combined when necessary with the particularized rules involving partial takings and special purpose properties, has adequately served as the measure of compensation in Texas condemnation eases for over a century. Although presenting unique and sympathetic facts, this case does not justify a departure from the market value concept.¹⁸ In summary, we hold that the substitute facilities doctrine does not apply to the taking of a private school and that the City properly preserved error in regard to the erroneous use of the doctrine. For these reasons, the judgment of the court of appeals is affirmed and this cause is remanded to the trial court for further proceedings.

Concurring opinion by CORNYN, J. Dissenting opinions by GONZALEZ and COOK, JJ.

1 . In Harris County, the county court at law is vested with exclusive jurisdiction of eminent domain cases, regardless of the amount in controversy. See Tex.Gov’t Code Ann. § 25.1032(c) (Vernon 1988 & Vernon Supp.1992).

2 . The City deposited the amount of the special commissioners' award with the registry of the court and took possession of the condemned property. While the matter was awaiting trial, Duchesne, as it was entitled to do, withdrew these funds. See Tex.Prop.Code Ann. § 21.-021(a)(1) (Vernon 1984).

3 . In Lutheran Synod, the Court noted the existence of "a market for camps, albeit not an extremely active one.” Lutheran Synod, 441 U.S. at 513, 99 S.Ct. at 1858. Likewise, in 50 Acres, the Court noted the existence of a "fairly robust” market for sanitary landfill properties. 50 Acres, 469 U.S. at 30, 105 S.Ct. at 455.

4 .One author notes that at times the Supreme Court has failed to clearly recognize the different methods of determining market value. She states:

While the Supreme Court has established fair market value as the standard for just compensation, it seems to have equated market value only with the market data approach, when, in fact, the market data approach, the cost approach, and the income approach are all accepted appraisal methods for determining fair market value.

N. Ackermann, Comment, Just Compensation, Land-Use Regulation, and the Compensable Temporary Taking: First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 28 Nat. Resources J. 393, 408 n. 142 (1988) (citations omitted).

5 . Also indicative of the Supreme Court’s dissatisfaction with the doctrine is the following language of 50 Acres:

"Taken in context, the apparent endorsement [in Brown ] of compensation by substitution is made in support of the Government’s power to condemn the property in Brown and does not state the proper measure of compensation in another case.” 50 Acres, 469 U.S. at 33, 105 S.Ct. at 456.

6 . We need not determine whether the substitute facilities doctrine would ever be applicable in a case involving the taking of public property. See 50 Acres, 469 U.S. at 37, 105 S.Ct. at 458 (O’Connor, J., concurring).

7 . Duchesne also relies upon the Uniform Eminent Domain Code. See Unif. Eminent Domain Code § 1004(b), 13 U.L.A. 90 (1986). Approved in 1974, it provides that the substitute facilities doctrine may be applied to cases involving private entities "operated upon a nonprofit basis”. This, however, was the exact proposition rejected by the Supreme Court in Lutheran Synod. See also Lutheran Synod, 441 U.S. at 517 n. 1, 99 S.Ct. at 1860 n. 1 (White, J., concurring) (referring to code along with cases employing doctrine).

8 . Additionally, we note that City of San Antonio was not an appeal from an award of compensation but an appeal from a temporary injunction. The court of civil appeals’ discussion regarding the substitute facilities doctrine was in the context of the constitutionality of the compensation statutes.

9 .Because Duchesne relies so heavily upon its waiver argument, we have outlined those places in the record indicating both the City’s theory of compensation and the City's objections to the use of the substitute facilities doctrine.

Pleadings

1) City answers interrogatories stating that its experts tell it that the proper approach is "market value of the land and improvements actually condemned, plus the damages (measured by a ‘cost to cure’ concept) to the remainder.”

2) City files motion for separate trial or hearing stating that substitute facilities doctrine doesn’t apply since proper measure of damages is cost to cure and market value.

3) City files supplemental petition arguing that substitute facilities provides excess indemnity and violates Texas and U.S. Constitutions.

4) City files motion in limine concerning any offers to buy apartments.

Pre-Trial

1) Trial court states that it appears the case will be submitted on substitute facilities doctrine but will not rule until after evidence heard.

2) Trial court states it has overruled City’s objections to use of substitute facilities doctrine.

Voir Dire

1) Trial court advises jury it is to determine what it will cost Duchesne to get substitute facilities.

2) Trial court advises jury that sole issue is what a substitute facility would cost.

3) City objects to informing jury that substitute facilities doctrine applies.

4) Trial court advises jury it is to determine substitute facilities; what it would cost school to get land and be in same condition.

5) City asserts that each time Duchesne or the court uses the term substitute facility the error gets "more acute”.

6) City renews objection to discussion of substitute facilities during voir dire since it assumes a position of law not yet determined.

7) City makes it clear that it is renewing objection to substitute facilities line of questioning in order to preserve error.

8) City states it has "protected my record” so will no longer object at risk of "wrath of the Court”.

9) Court allows City to advise jury that it has a different "theory”; being that it believes proper measure of damages is market value of land taken and damage to remainder.

10) City reiterates to jury the existence of two different theories of the case.

Trial

1) City objects to substitute facilities doctrine several times.

(a) MR. ROLLINS: If the Court please, we’re again going to object to this line of questioning and testimony which represents a Substitute Facility’s Doctrine. And in this case it is not the proper measure of damages, and is irrelevant to the issues that should be at Bar here and is prejudicial.

(b) MR. ROLLINS: Your Honor, the Plaintiff, City of Houston, objects to this line of questioning which ... [is] ... attempting to inject the Substitute Facility’s Doctrine in this case because this is a case where there is a private school without the power of condemnation. ...

2) City expert explains the three valuation approaches (market, cost and income).

3) City’s experts testify concerning cost to cure.

4) City's experts testify regarding market value of property actually taken.

5) City’s experts testify regarding cost to demolish and rebuild buildings.

6) Duchesne states that it has "heard [the City] come up here time and time again to object to the measure of damages that we’re using in this case.”

7) City’s expert testifies Duchesne is a special purpose property and schools are not sold in the open market place.

8) Several discussions regarding preservation of error.

(a) MR. ROLLINS: Your Honor, I think if it is error, I think that I have preserved it by my objections, and I will not—

THE COURT: I think also that, of course, I’m not telling you, but all you have to do is, I think, that question is probably arrived at on the issue. It’s either the law or it’s not the law.

MR. ROLLINS: That’s right.

THE COURT: And, sir, you’re not trying — it can never be said you were trying something back in when that wasn’t the law.

MR. ROLLINS: Your honor, I just think this is a very important point of law.

THE COURT: It’s the whole case.

MR. ROLLINS: Yes sir. And just out of an — I don’t want to impose on the Court's time, but out of an abundance of caution, I’m again making the objection.

THE COURT: You feel free to make any objections any time you want, sir. That’s what we’re here for.

MR. ROLLINS: And is the Court overruling my objection?

THE COURT: Yes sir. I’ve specifically overruled it.

(b) THE COURT: Well, I think we’ve been through all this.

MR. ROLLINS: Your Honor, I just wanted to be double safe.

Charge

1) City’s charge based upon cost to cure refused.

2) City's objections to charge including: (a) substitute facilities doctrine does not apply because Duchesne is a private school and has no legal duty to replace its facilities, (b) substitute facilities doctrine provides a windfall to Duchesne, (c) substitute facilities doctrine inapplicable since no showing that market value measure of damages to the remainder based on the cost approach deviates significantly from making Duchesne whole.

Post-Trial

1) City files motion for new trial arguing that it was error to submit the substitute facilities doctrine to the jury because (a) Duchesne is a private school, (b) Duchesne has no legal duty to rebuild, and (c) Duchesne has no eminent domain power. City also argues no evidence and insufficient evidence.

10 . We also note that Duchesne’s argument that the City’s “cost to cure” theory of compensation was the same as the substitute facilities doctrine is without merit. In his treatise on condemnation law, Nichols writes:

[T]he market measure has been applied to private schools while public schools are treated by the substitute approach.... In some instances, the cost approach has been used in lieu of the substitution approach so that depreciation may be taken into account. Also, damages to improvements on the remaining property have been recognized, usually in the form of cost to cure.

4 Nichols, Nichols on Eminent Domain, § 12C.01[4][d] (3d ed. 1978) (emphasis added). Nichols also states:

A peculiar problem in this area is presented where there is a partial taking of special purpose property. Usually, the difference between the before and after value of the property is the measure of compensation, reflecting damages to the remaining property as well as the value of the part taken.... Costs of curing defects caused by the taking may affect the after-value.

Id. at § 12C.01[2] (emphasis added). Others have used the term as well. In discussing damages to the remainder in partial taking cases, one appraisal manual provides:

Some courts, on the other hand, take the following position, which, in the author’s opinion, seems eminently more sound. That is that the evidence of restoration costs, or as more commonly called in recent years, 'costs to cure,’ is competent as bearing on the diminution of the value of the remainder caused by the taking.

H. Kaltenbach, Master Guide to the Successful Handling of Condemnation Valuation, 913 (1972). Additionally, cost to cure is recognized by numerous states. In Central Louisiana Electric Co. v. Huckabay, 446 So.2d 1327 (La.App.2d Cir.), writ denied, 450 So.2d 361 (1984), the court stated:

This is not a unique case requiring the award of 'cost to cure’ damages or any other special damages over and above diminution in market value of the remainder.

Id. at 1331. In City of Elkhart v. NO-BI Corp., 428 N.E.2d 43 (Ind.App.1981), the court held:

Where an award is made for a partial taking ... full compensation equals the fair market value of the land taken plus the value of damages to the residue. An owner whose land is taken in an eminent domain proceeding may be compensated for every element of damage that will naturally and ordinarily result from a taking. One type of such damage may be the cost to cure any defects caused by the taking. A properly compensated cost to cure may consist of the cost of remodeling the owner’s facility where the taking has resulted in loss of use, total or partial, of a loading dock.

Id. at 45; see also Divbion of Admin., State of Florida Dept. of Transp. v. Frenchman, Inc., 476 So.2d 224, 227 (Fla.App.1985), review dbm'd, 495 So.2d 750 (Fla.1986) (cost to cure can be used to mitigate the amount of the award when it exceeds the difference in market value); B & B Food Corp. v. State of New York, 96 A.D.2d 893, 466 N.Y.S.2d 60, 60 (1983) (cost to cure approach may not be used when the cure must be accomplished by going outside the tract in controversy).

11 . The City’s experts testified that schools are not sold in the marketplace.

12 . The fallacy in Duchesne’s argument is illustrated in its counsel’s opening remarks during oral argument before this court:

[T]he court of appeals erroneously, we believe, reversed the jury’s finding of damages for the school and imposed on the school a market value measure of damages in the face of evidence — in fact, conclusive evidence — undisputed evidence — that schools are not bought and sold in the marketplace, and, therefore, that there is no market for school property.

Contrary to this statement, the fact that schools are not bought and sold in the marketplace means only that the market data approach cannot be used in determining market value.

13 . In his amicus brief, Judge Rayburn states he was mistaken when he wrote in the first edition of his treatise that "[c]hurches, colleges and public institutions, although hard to sell, do have a market value”. See M. Rayburn, Texas Law of Condemnation, § 93 (1960). Judge Rayburn advises this court that he "corrected that mistake" in a 1972-73 supplement to the first edition. Curiously, however, a revised edition of Judge Rayburn’s treatise, released in 1987 and updated in November 1991, continues to contain the following statement:

There is nothing actually that does not have a market value, for the fact remains, that if by reason of its location, existence or surroundings, it had no marketability, it would by the same token have no intrinsic worth, except as some sentimental bauble of its owner.

M. Rayburn, Rayburn on Condemnation, § 19.01 (1987 & Supp.1991) (emphasis added). In fact, in the most recent supplement to his treatise, Judge Rayburn, after discussing this case, repeats the statement that "[c]hurches, colleges, and public institutions, although hard to sell, do have a market value". Id. While it is true Judge Rayburn also refers to the use of evidence regarding the cost of substituting a similar property, he concludes that the "ultimate issue" is the “hypothetical market value”. Id. These statements can hardly be considered as supporting, and in fact are contrary to, Du-chesne's position that private schools do not have a market value.

14 . The issue has arisen in the tax context since it also uses the "market value” concept. For example, in Polk County v. Tenneco, Inc., 554 S.W.2d 918 (Tex.1977), we stated:

The market value of Tenneco’s pipelines was highly contested at trial, and it was not an easy question to resolve. Segments of natural gas pipelines ... are rarely sold; and their market value therefore generally cannot be determined by comparing the prices brought by sales of similar properties ... [citing Cannizzo and State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194]. Thus, the “comparable sales" method of appraising property is of little use in valuing pipelines; and two other methods of appraisal must be used in assessing those properties. These two methods are the cost approach to value and the income approach to value.

Id. at 921 (court also gives explanation of cost approach). See also Cherokee Water Co. v. Gregg County Appraisal Dist., 801 S.W.2d 872 (Tex.1990) (general discussion); Missouri-Kansas-Texas R.R. Co. v. City of Dallas, 623 S.W.2d 296, 300 (Tex.1981) (stating that cost and income approaches are recognized alternative approaches); Missouri Pac. R.R. Co. v. Midland Indep. School Dist., 647 S.W.2d 62, 63-64 (Tex. App.—El Paso 1983, writ refd n.r.e.) (recognizing three approaches to determining market value).

15 . Substantial authority exists concerning partial taking cases. See, e.g., Tex.Prop.Code Ann. § 21.042(c) (Vernon 1984); Callejo v. Brazos Electric Power Coop., Inc., 755 S.W.2d 73 (Tex.1988); State v. Schaefer, 530 S.W.2d 813 (Tex.1975); Uselton v. State, 499 S.W.2d 92 (Tex.1973); City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972); State v. Walker, 441 S.W.2d 168 (Tex.1969); State v. Zaruba, 418 S.W.2d 499 (Tex.1967); State v. Meyer, 403 S.W.2d 366 (Tex.1966); City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936), op'n on reh'g, 126 Tex. 618, 89 S.W.2d 979 (1936); Buffalo Bayou, Brazos & Colorado R.R. Co. v. Ferris, 26 Tex. 588 (1863).

16 . Special purpose properties generally include, among other things, churches, parks, schools and cemeteries. See, e.g., 4 Nichols, Nichols on Eminent Domain, § 12C.01 (3d ed. 1978).

17 . We have received numerous amicus curiae briefs filed on behalf of Duchesne's position. Unfortunately, they all make the mistake of equating "market data” with "market value”, and concluding that because there is no market for schools the substitute facilities doctrine applies. For example, the Episcopal Diocese states that it is “clear that if a property has a market value (i.e., its value can be established through comparable sales), the substitute facilities or cost to cure measure is not applicable.” This is not correct. Market value differs from the market data approach to determining market value. By way of analogy, we find a 1966 condemnation article written by counsel for the City instructive:

“One of the inadequacies of language is that sooner or later, the thing is confused with the symbol for that thing. When the mind is centered on the verbal description of something instead of the thing itself, we conclude that 'Pigs are rightly named, since they are such dirty animals.”’

J. Rollins, What Is Intrinsic Value?, 29 Tex.B.J. 95, 95 (1966) (quoting Gaines v. Bader, 253 S.W.2d 1014, 1016 (Tex.Civ.App.—San Antonio 1952, no writ) (Pope, J.)). In this case, Du-chesne and the amici confuse “the thing” (the determination of a property’s market value) with “the symbol for that thing” (the term "market value”).

18 . As one commentator has stated: "In summary, one must reconcile himself to the somewhat harsh but necessitous reality that the government must from time to time ‘take’ property.” R. Rutland, Jr., Eminent Domain Litigation in Texas, 17 Baylor L.Rev. 168, 173-74 (1965).