West Texas Utilities Company v. Kittley

447 S.W.2d 221, 1969 Tex. App. LEXIS 2261
CourtCourt of Appeals of Texas
DecidedOctober 31, 1969
Docket4342
StatusPublished
Cited by1 cases

This text of 447 S.W.2d 221 (West Texas Utilities Company v. Kittley) 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
West Texas Utilities Company v. Kittley, 447 S.W.2d 221, 1969 Tex. App. LEXIS 2261 (Tex. Ct. App. 1969).

Opinion

COLLINGS, Justice.

This is an eminent domain proceeding. The West Texas Utilities Company sought an easement for the construction, maintenance, and repair of an H-Frame transmission line across land owned by J. E. Kittley and wife situated in Haskell County. The right of the Utility Company to *222 condemn the easement in question and all jurisdictional prerequisites to maintaining the suit were stipulated. The sole issues in the trial were the value of the easement acquired and the amount of damage to the remaining land of the Kittleys. The case was submitted upon six special issues, and the jury in answer to such issues found, in substance, as follows:

(1) That the market value of the 8.2 acre easement in question immediately before the easement was acquired by the plaintiff was $2,378.00; (2) that the market value of the 8.2 acre easement tract immediately after such easement was acquired was $594.50; (3) that the defendants’ remaining lands, exclusive of said 8.2 acre easement, was reduced in market value; (4) that 448 acres was the amount of defendants’ remaining land, exclusive of the 8.2 acre easement tract, which was damaged and reduced in market value; (5) that the market value of the remaining land found to be damaged, immediately before plaintiff’s acquisition of the easement, was $129,930.00; (6) that the market value of the remainder of the defendants’ land, immediately after plaintiff’s condemnation of the 8.2 acre easement, was $120,834.90.

Based upon the verdict, judgment was rendered (1) awarding the Utility Company the easement as prayed for and (2) awarding the defendants damages in the sum of $10,878.60. The West Texas Utility Company has appealed.

The tract of land here involved consists of 456.30 acres out of which appellant condemned the 8.2 acre easement in question. The 456.30 acres was divided into two tracts. The west field contained 186.75 acres, upon which the defendants’ home and other improvements were located. The east tract contained 269.55 acres, 84.30 acres of which was in pasture. The easement acquired was 50 feet in width and extended at an angle across appellees’ farm. 5.28 acres in the easement strip are across the west field and 1.95 acres in the strip are across the east field and .97 acres is in the pasture. The easement in addition to the 50 foot strip, goes around a surface tank on the east side of appellees’ land. The easement was taken for the purpose of constructing a high 'voltage transmission line. The rights acquired by the Utility Company were in substance as follows:

(1) The right to construct, repair and maintain 10 structures, 9 of which consist of two wooden pole H-Frame structures, and one of which is a three wooden pole angle structure with 3 guys and 3 anchors, together with necessary wires, cross arms, braces, screws, pins, insulators and other attachments. The Utility Company further acquired the right of ingress and egress over and across the described 50 foot easement strip for repair and maintenance purposes. It is undisputed that appellees’ property is a fine farm with valuable improvements located thereon. Appellant presents points contending that the court erred in overruling its motion for a new trial for the reasons that:

(1) The judgment is not supported by competent evidence; (2) the judgment is manifestly excessive; (3) the judgment is so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair and unjust; (4) there is no evidence to support the answers of the jury to special issue number three; (5) the answer of the jury to special issue number three is so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair and unjust; (6) there is no evidence to support the answer of the jury to special issue number 4; (7) the answer of the jury to special issue number 4 is so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair and unjust; (8) there is no evidence to support the answer of the jury to special issue number 5; (9) the answer of the jury to special issue number 5 is so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair and unjust; (10) there is no evidence to support the answer of the jury to special issue number 6; (11) the *223 answer of the jury to special issue number 6 is so against the overwhelming weight and preponderance of the evidence as to be manifestly unfair and unjust. In appellant’s 12th point it is contended that the court erred in admitting, over objection, testimony that the remainder of appellees’ land suffered damages and the amount of such damages because of appellant’s acquisition of the easement, for the reason that no proper predicate had been laid for introduction of such opinion evidence.

Appellant’s first 11 points are presented and argued together. Appellant asserts that the judgment cannot stand unless supported by probative evidence of the amount of damage suffered by the easement strip and by the remainder of appellees’ land. Appellant contends that an examination of the testimony of appellees’ witnesses will show that such testimony does not support the answers of the jury to special issues numbers three through six. We cannot agree with this contention.

The rule to be followed in making proof of damages in condemnation cases is stated by our Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, 201 (Comm.Apps., Opinion adopted by Sup.Ct., 1936.):

“ — As indicated above, the correct method of adducing evidence as to market value is by witnesses, after suitable qualification, giving their opinion as to the market value of the residue before and after the taking, rather than undertaking to testify to specific items of injury and damage. See Gainesville, H. & W. Railway Company v. Hall, 78 Tex. 169, 175, 176, 14 S.W. 259, 9 L.R.A. 298, 22 Am.St.Rep. 42. If the witness answers that there has been a depreciation or an enhancement in the market value after the taking, in either event it is proper to question him as to the basis of his opinion and the matters he has taken into consideration in arriving at his opinion.”

In the case of Brazos River Conservation and Reclamation Dist. v. Costello, Tex.Civ.App., 169 S.W.2d 977 (Ct.Civ.Apps., Ref. WM., 1943), it is stated as follows:

“In order to enable the jury to determine the depreciation of the remainder, the parties have the right to introduce evidence of everything which would tend to affect the value of the land in the estimation of a proposed purchaser or would tend to make it more or less valuable to the present owner. 16 Tex.Jur. 991; Parker County v. Jackson, 5 Tex.Civ.App. 36, 23 S.W. 924.”

Appellee J. E. Kittley, the owner, and his wife reside on the land in question. He testified concerning the value of the 8.2 acre strip condemned and the remainder of his land both before and after the taking of the strip. Seven other farmers or retired farmers, some of whom were land owners, testified concerning the value of the strip taken and the remainder of the land. One of appellees’ witnesses to the value of the land was a real estate man.

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Related

West Texas Utilities Company v. Bergstrom
458 S.W.2d 548 (Court of Appeals of Texas, 1970)

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Bluebook (online)
447 S.W.2d 221, 1969 Tex. App. LEXIS 2261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-texas-utilities-company-v-kittley-texapp-1969.