State v. Cherry

517 S.W.2d 337, 1974 Tex. App. LEXIS 2875
CourtCourt of Appeals of Texas
DecidedDecember 19, 1974
DocketNo. 18390
StatusPublished
Cited by3 cases

This text of 517 S.W.2d 337 (State v. Cherry) 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
State v. Cherry, 517 S.W.2d 337, 1974 Tex. App. LEXIS 2875 (Tex. Ct. App. 1974).

Opinion

GUITTARD, Justice.

In this proceeding the State of Texas has taken an 11.25-acre strip of land out of a tract of 81 acres owned by H. S. Cherry. Most of the 81-acre tract lies in a floodplain, but some of it is high ground fronting on a major thoroughfare. All of the strip taken is subject to flooding. Judgment was rendered on a verdict in an amount favorable to the landowner, and the State appeals.

We reverse the judgment on the ground that the trial court erred in overruling the State’s motion to strike the testimony of the landowner’s appraiser, who attributed to the strip taken an average value based on the value of the whole tract. In view of another trial, we hold also that the court did not err in determining the value of the remaining land before the taking by submitting to the jury the value of the whole tract and subtracting from that value, as found, the value of the part taken, instead of submitting the usual issue of the value of the remaining land before the taking. In other words, we hold that the court properly submitted issues modeled on those approved in Uselton v. State, 499 S.W.2d 92 (Tex.1973) instead of the issues suggested in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936).

The Valuation of the Landowner’s Appraiser

The present case is similar to City of Richardson v. Smith, 494 S.W.2d 933 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.). In that case we held that where the part taken is subject to limitations of use not applicable to the whole tract, an opinion of the value of the part taken based on an average-per-acre value of the whole may be admitted only if there is evidence that the part taken contributed to the whole the same value per acre as the remaining land. Id. at 939. Under that holding we find that the testimony of the landowner’s appraiser here is inadmissible.

The following statement of evidence is taken entirely from the testimony of the landowner’s appraiser. The 81-acre tract in question is located between Lamar Street and the Trinity River in an industrial area of Dallas. It has 1450 feet of frontage along Lamar Street. A railroad right-of-way crosses the property from north to south, dividing it into a tract of 37.75 acres on the east and 43.25 acres on the west. A high embankment on this right-of-way protects the easterly tract from flooding from the river, but some of the land east of the railroad is subject to flooding by water that accumulates between [339]*339Lamar Street and the embankment. The land is high along Lamar Street and for several hundred feet back, and all the land further west is in a designated floodplain for zoning purposes, but it has been filled as far west as the railroad. Beyond the railroad the property has not been filled and slopes gradually down to the river. On cross-examination, the appraiser admitted that he did not know how much of the property east of the railroad had been filled at the time of the taking, but his opinion of the value of the whole tract appears to be based on the assumption that substantially all of the land east of the railroad was high ground or had been filled. He was confident that notwithstanding the floodplain designation of all but a narrow strip along Lamar Street, the landowner would have no difficulty obtaining a building permit for industrial buildings on the tract east of the railroad.

The appraiser conceded that all of the land west of the railroad was subject to flooding by the river, and that the low land was not as valuable as the high land because of the expense of filling. He recognized that the only access to this part of the land was along an unimproved street running from Lamar Street along the north side of the property and ending just beyond the railroad embankment. In his opinion, the highest and best use of the entire 81 acres was for a single-user industry, although he said it might be suitable for two users if a street could be extended along the south line from Lamar Street across the railroad. The part east of the railroad could be used for offices, warehouse, or factory, and the back part could be used for employee parking and open storage of heavy items that would not float away.

The 11.25-acre strip of land in question was taken by the State for an elevated bridge structure for Interstate Highway 45, designed to run diagonally from north to south across the 81 acres and over the railroad. Only one acre of the part taken lies east of the railroad. The remaining 10.25 acres lie on the west side, including a 3.5-acre triangle not actually taken, but so isolated that the parties stipulated it should be included in the taking for valuation purposes.

When asked for his opinion on the value of the property, the appraiser said that the entire tract was worth $12,500 per acre, or approximately $1,000,000. He estimated the value of the part taken by multiplying that per-acre value by 11.25 and then rounding it off to $140,000. He admitted that $12,500 was an average value of land both filled and unfilled, and said that he would give a different value if appraising only the property along Lamar Street. He did not in any manner indicate an opinion that the strip taken contributed the same value per acre as the remaining land.

In support of the trial court’s denial of the State’s motion to strike, the landowner argues that City of Richardson is distinguishable because there the city was taking all of the floodland and part of the high ground, whereas here the State is taking only a small part of the floodlands and none of the high ground. These differences are not significant, since the average value here, as in City of Richardson, is obviously affected by the higher value of the remaining land. The impropriety of using an average is especially clear with respect to the 10.25 acres taken west of the railroad. According to the appraiser’s own testimony, this 10.25-acre-strip, like all the land west of the railroad, was subject to flooding by the river, and, consequently, its use was limited to employee parking and open storage of heavy materials. Yet the value he assigned to it was an average of the value of the entire 81 acres, determined in part by the suitability of the land east of the railroad and along Lamar Street for highly developed industrial use. Application of this proportionate-value method when the part taken is worth less per acre than the remaining land would give the landowner more than the fair value of the land taken. Comment, Compensation for Partial Takings in Texas, 6 St. Mary’s L.J. 206, 220 (1974).

[340]*340 The Special Issues

Since the foregoing holding requires that the case be tried again, we need not consider all the points- presented for reversal. For guidance of the trial court, however, we shall discuss the State’s contention that the court erred in refusing to submit the familiar issues suggested in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, rehearing denied, 126 Tex. 618, 89 S.W.2d 979 (1936), and in submitting instead issues modeled on those approved by the Supreme Court in Uselton v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roberts v. State
754 S.W.2d 477 (Court of Appeals of Texas, 1988)
DeWitt & Rearick, Inc. v. State
531 S.W.2d 862 (Court of Appeals of Texas, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
517 S.W.2d 337, 1974 Tex. App. LEXIS 2875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cherry-texapp-1974.