Southern Pacific Co. v. Wilson

398 S.W.2d 324, 1965 Tex. App. LEXIS 2185
CourtCourt of Appeals of Texas
DecidedDecember 30, 1965
DocketNo. 174
StatusPublished
Cited by2 cases

This text of 398 S.W.2d 324 (Southern Pacific Co. v. Wilson) 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
Southern Pacific Co. v. Wilson, 398 S.W.2d 324, 1965 Tex. App. LEXIS 2185 (Tex. Ct. App. 1965).

Opinion

SHARPE, Justice.

This appeal is from a judgment rendered in a condemnation case in favor of appel-lees in the amount of $33,786.70. Southern Pacific Company, appellant here, was the plaintiff (condemnor) and Willett Wilson and his sister, Christine Wilson, appellees here, were defendants (condemnees) in the court below.

Appellant condemned an easement for railroad right-of-way purposes over a 4.723 acre strip which was part of a 121.72 acre tract of land out of the M. Sanches survey, Calhoun County, in the city of Port Lavaca, Texas. The jury fixed the value of the strip taken for the easement at $6,580.00 and the difference in value of the remaining 116.997 acres before and after the taking of said strip at $27,206.70, aggregating $33,786.70.

On this appeal, appellant, by three points, contends that the trial court erred, in substance, as follows: (1) in admitting certain testimony of appellees’ witness Sames with regard to market values of the property in question and in refusing to strike the same on appellant’s motion, (2) in refusing to admit certain testimony of the witness Sames developed on cross-examination concerning market values, and (3) in overruling appellant’s objection to a jury argument by counsel for appellees and in failing to grant a motion for mis-trial on account of same.

Under point one, appellant contends that the trial court should have stricken the testimony of the witness Sames because his opinion as to market value was shown by questions propounded on cross-examination to be based on “asking or offering prices” of property located in the vicinity. Appellant argues that such “asking or offering prices” are wholly insufficient as the basis for an opinion concerning market value and are inadmissible as evidence of same, relying upon West v. State, 150 S.W.2d 363 (Tex.Civ.App.1941, n. w. h.), and cases therein cited.

The record reflects that on direct examination Sames was qualified as an expert witness and gave his opinion concerning the market values in question based upon his general knowledge and experience, on two comparable sales of property in the vicinity, as well as upon personal knowledge of the 121.72 acre tract involved. He testified that the strip taken had a reasonable market value of $2,198.28 per average acre, amounting to $10,404.47, by calculation. As to the remaining 116.997 acres, he testified that it had a reasonable market value of $2,202.-26 per average acre before and $1,614.30 after the strip was taken, or a difference of $587.96 per average acre. He testified, as did the other value witnesses, that some portions of the tract were more valuable than others, particularly for a community shopping center and for residences.

On cross-examination by counsel for appellant, the following took place:

“Q. In making this appraisal and determining your estimate of this ten thousand dollars an acre did you consider any sales of comparable property fronting on Austin Street ?
A I considered sales of comparable property fronting on Austin Street and also property that was being offered for sale, and also the availability of property.
Q You considered the asking price, is that correct?
A Offered for sale. That’s correct.
“MR. ANDERSON: We move that the witness’s opinion on this entire ten [326]*326acres be stricken, Your Honor. It’s based on hearsay, offering prices. That’s not the proper basis of an opinion of an expert. Only actual sales of property of comparable situations or comparable circumstances are permissible as the basis of an expert’s opinion. We move that his entire testimony of this ten acres be stricken.
“MR. WILSON: I think, Your Honor, that the cases all hold that an appraisal witness can consider everything. He can consider terrain; he can consider improvements; he can consider offering prices for sale, offering prices to purchase. In other words, he uses that conglomeration and accumulation of information to base his appraisals and I think it’s permissible, Your Honor.
“THE COURT: I believe the objection is based to the weight rather than the admissibility.
“MR. ANDERSON: I understand my objection is overruled? Note my exception.”

Sames did not testify as to any specific “asking or offering” price, and the authorities relied on by appellant are not in point on the contention made here. The acquaintance of the witness with “asking or offering prices” was a part of his general knowledge and experience in the real estate business and did not make his testimony inadmissible or subject to a motion to strike. State v. Thompson, 290 S.W.2d 319, 323 (Tex.Civ.App.1956, writ, ref., n. r. e.); State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 200, 979 (1936) ; Rayburn, Texas Law of Condemnation, § 128, p. 404. Appellant’s point one is overruled.

Under its second point appellant contends that the trial court denied it the right of cross-examination to test the opinion of the witness Sames in rebuttal to testimony given by him on direct examination. Appellant says that the trial court erred in refusing to admit certain testimony of that witness sought to be elicited on cross-examination, and, after appellees’ objection was sustained, developed out of the presence of the jury on bill of exception. Such testimony related to the basis or reasons for the opinion of the witness as to the market value of the property in question. Specifically, counsel for appellant questioned the witness about a subdivision located in the city of Victoria, Texas, in another county; about persons, including a district judge, who lived in it, and the cost of homes situated there. When that line of questioning was begun, the trial court sustained appellees’ objection on the ground that the property inquired about was not shown to be comparable. After appellant had developed the testimony of Sames on bill of exception, and re-offered it, the trial court ruled as follows:

“THE COURT: I had excluded that testimony for reason of the fact that it’s not comparable property; it’s not located in the same county; it’s in a town of forty or fifty thousand population compared to a town of ten thousand; and that it’s not comparable property to make a comparison by; therefore, your request is being denied.”

The trial court ruled correctly in sustaining appellees’ objection to the prof erred testimony and in refusing to grant a mistrial. That the time the witness Sames was asked questions by counsel for appellant about a subdivision in another county and concerning specific persons who lived there, testimony had been developed to the effect that some persons lived next to railroad tracks and others preferred not to do so. Sames had testified, in substance, that some people did not mind living next to a railroad track but that they didn’t move there because it was located there; that a railroad track did not add anything to value, and, if anything, detracted from it, partly because of noise and vibration. The cross-examination of Sames covers about 35 pages in the statement of facts. Appellant [327]*327was afforded ample opportunity to test the accuracy and credibility of Sames’s testimony. In Holcombe v.

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398 S.W.2d 324, 1965 Tex. App. LEXIS 2185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-pacific-co-v-wilson-texapp-1965.