State v. Cloud Construction Co.

476 S.W.2d 395, 1972 Tex. App. LEXIS 2664
CourtCourt of Appeals of Texas
DecidedJanuary 26, 1972
DocketNo. 11865
StatusPublished
Cited by1 cases

This text of 476 S.W.2d 395 (State v. Cloud Construction Co.) 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. Cloud Construction Co., 476 S.W.2d 395, 1972 Tex. App. LEXIS 2664 (Tex. Ct. App. 1972).

Opinion

O’QUINN, Justice.

This is a suit in condemnation, brought by the State of Texas to acquire 4.31 acres of unimproved land in Temple, Bell County, Texas, as additional right-of-way for Interstate Highway 35, which abuts the tract taken, in order to provide grade separations across the highway.

Upon a jury verdict the trial court awarded Cloud Construction Company, Inc., owner of the property, damages in the sum of $75,000. The State has appealed and brings sixteen points of error. We overrule all points of error and affirm the judgment of the trial court.

In the trial the State offered testimony, in rebuttal of evidence offered by the landowner that the Cloud tract had direct access to the main traffic lanes of I.H. 35, to the effect that it was an official policy of the Texas Highway Department that a landowner wanting access to the highway would be accorded such access only after approval by the State Highway Department and then only by way of a frontage or service road to be constructed when funds were available for its construction.

The State’s testimony as to such policy was offered through a district maintenance engineer who had been assigned to the Temple area since 1954. Cloud Construction objected, and, out of the presence of the jury, the maintenance engineer was examined at length by counsel for both parties. At the conclusion of this proceeding the trial court sustained the landowner’s objection to that part of the engineer’s testimony which pertained to over-all policies of the State Highway Department, but announced that the witness would be permitted to testify “if he knows from his own personal knowledge that no one has been able to gain direct access to the highway before.”

Thereafter, in the presence of the jury, the witness testified that access was allowed to main lanes of traffic on I.H. 35 at established grade crossings, that his division office had charge of permits concerning access, and that, to his knowledge, access has not been granted “at any point directly from adjoining property to the main lanes . . .” except at established grade crossings.

The district maintenance engineer testified, at the hearing out of the presence of the jury, that he did not participate in policy making of the highway department and that his knowledge of the plans and policies of the department was derived from oral instructions from superiors or from written memoranda. The State did not tender minutes of the State Highway Commission or other documentary proof of plans and policies of the department affecting access from private property to the main lanes of traffic on the highway.

The trial court properly excluded the testimony of the engineer as to general policy of the State Highway Commission with respect to access afforded property owners in reaching the main lanes of traffic. The Legislature in 1957 delegated authority to the State Highway Commission to “designate any existing or proposed” highway as a “Controlled Access Highway,” through “proper order entered in its minutes.” Article 6674w-l, Vernon’s Ann. Tex.Civ.St. (Acts 1957, 55th Leg., p. 724, ch. 300, sec. 2). In general the State Highway Commission is directed by statute to “formulate plans and policies for the location, construction and maintenance of a comprehensive system of State highways and public roads.” Article 6665, V.A.T.S. The Commission is required also to “maintain a record of all proceedings and official orders and keep on file copies of all road plans, specifications and estimates prepared by the Department under its direction.” Article 6666, V.A.T.S.

The testimony of the division maintenance engineer as to plans and policies established by the State Highway Commission was hearsay and therefore no evidence as to access available from private property to the main lanes of traffic on [397]*397I.H. 35 under such policy. Belverman v. State, 16 Tex. 130 (1856); Roberts v. Dallas Railway & Terminal Co., 276 S.W.2d 575, Tex.Civ.App., El Paso 1953, writ ref. n. r. e. Further, parol evidence as to plans and policies of the State Highway Commission was not the best evidence of such plans and policies affecting access to the main lanes of traffic. Dallas County Water Control & Improvement District No. 7 v. Ingram, 395 S.W.2d 834, 841, Tex.Civ.App., Dallas 1965, no writ; Travis County Water Control and Improvement District No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966).

The State contends under its first two points of error that “The access rights were obviously material to the question of value and the State was harmed by not being allowed to support its opinions of value.” The record shows that although William P. Cloud, who controlled the Cloud Construction Company, testified that the 4.31-acre tract had possible access to the main lanes of the highway, he admitted he had never discussed access with the highway department and that his concept of the highest and best use of the tract would not require direct access to the main lanes of traffic. Cloud conceded that he did not know whether such access would be approved, and that while “there was not any access . . . the grade was such that there could have been. . . ” One witness for Cloud Construction on land value testified that he did not consider the tract as having direct access in arriving at value, but that if he had so considered the tract, his appraisal would have been higher. Another witness for Cloud Construction testified on cross examination that the Cloud tract did not have access directly to the main lanes of traffic and that frontage roads for similarly situated property in the general area afforded the only access for private property to the highway main lanes. The witness stated that his appraisal would have been unaltered even if the only access to the highway traffic lanes was by means of frontage roads. As already observed, the district maintenance engineer was permitted to testify before the jury that to his knowledge access had not been granted at any point from adjoining property directly to the main lanes of the highway. Arguments of counsel for both parties have been brought forward, and we do not find that the question of access was argued to the jury by either party.

We overrule the points of error directed at the trial court’s exclusion of testimony pertaining to plans and policies of the State Highway Commission as to access from private property to the main lanes of traffic on the highway.

The Cloud Construction tract is triangular, with its base bordered on the west by a railroad and with its apex pointing easterly toward a nearby grade crossing on I.H. 35. The southerly side of the tract adjoins the right-of-way of I.H. 35 for a distance of more than 1,000 feet, and the northerly side of the triangle adjoins Industrial Boulevard a distance of nearly 1,000 feet. Other property in the neighborhood of the Cloud tract is developed and used for industrial purposes, with no nearby retail commercial or residential development or uses. The only residential property located near the Cloud tract is situated on the opposite side of I.H. 35 from the tract, with the only nearby or convenient connecting link afforded by a grade crossing where Industrial Boulevard intersects the highway, a short distance from the apex of the Cloud 4.31 acres.

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Bluebook (online)
476 S.W.2d 395, 1972 Tex. App. LEXIS 2664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cloud-construction-co-texapp-1972.