Southwestern Bell Telephone Co. v. Griffin

429 S.W.2d 576, 1968 Tex. App. LEXIS 2658
CourtCourt of Appeals of Texas
DecidedJune 18, 1968
DocketNo. 7885
StatusPublished
Cited by3 cases

This text of 429 S.W.2d 576 (Southwestern Bell Telephone Co. v. Griffin) 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
Southwestern Bell Telephone Co. v. Griffin, 429 S.W.2d 576, 1968 Tex. App. LEXIS 2658 (Tex. Ct. App. 1968).

Opinion

FANNING, Justice.

An eminent domain case. Appellant telephone company condemned a diagonal easement across appellees’ 68.9 acre tract of land for the purpose of laying an underground communications cable. The award of the special commissioners was duly appealed from by appellees to the county court of Hopkins County, Texas. Thereafter, the legislature, by special enactment, transferred eminent domain jurisdiction in Hopkins County from the county court to the district court. Trial in the district court resulted in a judgment for appellees entered on a verdict of a jury in response to special issues. The amount of such judgment was $5,837.81, less $388.50 previously withdrawn by appellees, leaving a balance of $5,449.31. Such judgment was composed of $414.17 for the 1.10446 acres of land within the easement and $5,423.64 for the diminished value of the remainder of the 68.9 acres outside the easement. Appellant has appealed.

Appellant on appeal has not presented any point or points complaining of the portion of the judgment for the 1.10446 acres of land within the easement. Appellant’s points on appeal relate to the portion of the judgment with respect to the damages awarded appellees for the remainder of their 68.9 acres outside of the easement.

Special Issues 3 and 4 and the jury’s answers thereto were as follows:

“SPECIAL ISSUE NO. 3:
“From a preponderance of the evidence, what do you find was the reasonable market per average acre of the remainder of the defendant’s land not condemned, that is, the balance of defendant’s property other than the strip of land containing one and fraction acres upon which the easement was acquired, immediately before said easement was taken for construction of a telephone, telegraph and communications system on October 12, 1965?
Answer in dollars and cents or none.
ANSWER: $500.00 per average acre.
“SPECIAL ISSUE NO. 4:
“What do you find from a preponderance of the evidence was the reasonable market value per average acre, of the remainder of the defendants’ tract of land, exclusive of the strip of land upon which the easement was obtained, immediately after such easement was taken for construction of a telephone, telegraph and communications system on October 12, 1965?
Answer in dollars and cents or none.
ANSWER: $420.00 per average acre.”

Appellant has no point or points attacking the jury’s finding to special issue No. 3 and the evidence amply supports the jury’s finding to special issue No. 3.

[578]*578Appellant presents 7 points on appeal. Appellant’s points 1 to 6, inclusive, are in essence to the effect that there was “no evidence” and “insufficient evidence” to support the jury’s answer to special issue No. 4. Appellant by its 7th point contends that the judgment was excessive.

Appellees own 68.9 acres of land, approximately one-third of which is located within the city limits of Sulphur Springs, Hopkins County, Texas. The tract is rectangular in shape, located in the western part of the city and is bounded on the south by Main Street and on the north by the L. & A. Railway.

Appellant telephone company, in the Fall of 1965, commenced proceedings to condemn a 20-feet wide and 2401-feet long diagonal easement across appellees’ land for the purpose of constructing, operating, maintaining, replacing, and removing such telephone, telegraph and communications systems as appellant may from time to time require, consisting of underground cables, wires, conduits, splice boxes and other communication appurtenances under and across said 20-foot right-of-way, with the right to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of said right-of-way, and the right to install, maintain and use gates and fences which cross said right-of-way and ingress and egress along the said strip.

At a hearing before the Special Commissioners, the requested easement and certain related rights were granted and appellees were awarded damages. In the easement granted appellees are reserved the right of ordinary use of the land insofar as such use does not interfere with appellant’s telephone cable. Appellant also stipulated that construction of railroad spur tracks, roads, streets and drainage structures over, across or through the easement would not constitute interference. Appellant also did not condemn the right of ingress and egress over the remainder of the 68.9 acre tract but did condemn the right of ingress and egress over the easement strip itself. Ap-pellees timely appealed and in October, 1967, a jury trial was commenced in the district court of Hopkins County, Texas. Appellees admitted appellant had the right to condemn the easement and obtained the right to open and close. Judgment was thereafter entered in November, 1967.

The easement, containing 1.10446 acres of land, enters appellees’ tract from the east at a point ten feet south of the northeast corner and extends diagonally 2401 feet across appellees’ property to a point in the west property line, approximately 625 feet north of the southwest corner.

The main thrust of appellant’s argument on its “no evidence” and “insufficient evidence” points is to the effect that appellees’ real estate expert witnesses in testifying to their opinions as to market value of the remainder of the 68.9 acres, after the taking of the 1.10446 acre easement, did not explain, or sufficiently explain, the “how” and “why” the remainder would be damaged to the extent testified to by such expert witnesses and that their opinions on the value of the remainder were therefore merely conclusions not supported by evidence of probative force and were not sufficiently supported by evidence of probative force. In support of these contentions appellant relies principally upon the Zir-jacks case1 and other cases of similar nature cited in its brief among which are the following found below.2

[579]*579In answer thereto appellees argue the opinions of value tendered into evidence by witnesses for the appellee landowners did have probative force and weight and were sufficient to support the jury’s verdict and the judgment of the court, and that various value witnesses tendered by the landowners did articulate the nature of the damage, the effect of the damage on the residual acreage and the relationship of the damage to market value differences before and after appellant’s acquisition of the easement. Appellees in support of this view in their brief cite the Scarborough case,3 the McFadden case,4 and other authorities.

Appellees presented three real estate expert witnesses on values. Two of these expert witnesses also testified as to the “how and why” the remainder was damaged after the taking of the easement. Appellee landowner, Homer Griffin, also testified with respect to aspects of damage to the remainder of the land.

Appellees’ first expert witness, Mr. M. Z. Bailey, was shown to be a well qualified real estate appraisal expert and to be thoroughly acquainted with the property in question and with property values in Sulphur Springs and in Hopkins County, Texas, and Mr. Bailey duly qualified as an expert to testify as to the values in question.

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Related

Southwestern Bell Telephone Co. v. Ramsey
542 S.W.2d 466 (Court of Appeals of Texas, 1976)
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550 S.W.2d 297 (Court of Appeals of Texas, 1976)
Southwestern Bell Telephone Co. v. West
456 S.W.2d 143 (Court of Appeals of Texas, 1970)

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Bluebook (online)
429 S.W.2d 576, 1968 Tex. App. LEXIS 2658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwestern-bell-telephone-co-v-griffin-texapp-1968.