*1 him, binding uрon in order for to relator would be property held gain possession title and relator to then filed. Case, value, have to its another suit Case, respondent venue as to therefore conclude that We properly County by 29a when in Dallas virtue of Subdivision lies conjunction and that considered in with Subdivision Appeals in this by the decision rendered case is in Dallas Court Pioneer opinion of this Court conflict Building supra, Gray, case was Ass’n. v. and that such & Loan correctly controlling аnd is case at decided bar. own assume that will of its
We court, accord those conform its decision to ap- but in the propriate it should will issue the event not do so Clerk Procedure, writ. Texas Rules of 475. No.
Opinion July 25, delivered 1951. rehearing
No motion for filed. Charley of Dallаs Priolo et ux. No. A-2950. 1951. Decided June Rehearing July 18, 1951. overruled Rehearing Second Oct. 3, overruled (242 176.) Series, 2dW., *2 Kucera, Shurette, H. P. H. Louis all Jon H. of Nichols Dallas, petitioner. for Jr., Andress, Dallas, respondent.
Wm. delivered the Mr. Chief Justice Hickman
Court. strip approximately land of Dallas cоndemned Dolphin 30 x feet Haskell to extend and widen Road at space open Avenue. The condemned was the between building old line street and the front entrance of owned respondent grocery occupied Priolo and аnd used him as a liquor portion provided store and store. The condemned seven parking grocery places head-in of his stores. front In issues the found that the market answer $1,200.00; part taken was taking, $30,000.00 before part not taken was temporаry taking; Priolo suffered $28,200.00 after widening road in during profits damages from loss permanent suffer $326.00; that he would the sum verdict, judgment taking. Upon profits result appealed, $3,326.00. sum total rendered assignments, complaining the item City filed cross and the assignments damages. сross temporary $326.00 assign any to that error here does not and Priolo sustained therefore, ruling. We, us for decision. do not it before have re- reversed The case was trial erred trial court on its that the court manded excluding opportunity expert,” of a “business have the fair market value of the busi- who would testified to *3 premises taking, the nesses on before and after the Chief the dissenting. Justice 234 S. In order test the of that correctness the Court Appeals a proceedings rather detailed statement of the in damages required. the trial court is To establish the amount of his placed upon Wolf, the a witness stand Arthur real experience estate appraising dealer with much in Dallas property. The witness testifiеd that he was familiar with Priolo’s property, neighborhood with located, in which it and by with the volume of business done Priolo. per- He was then opinion mitted to state his as to the value taken and lessened building the land and the not taken. Questioned by attorney as to the factors which went by him, into the values testified to he stated that there were factors, among being several living them people number of vicinity business, within the parking of the facilities, uses to which the put, can be and the income there- highest from. He testified that and best use for Priolo’s property was that for which presently being it was used. At length considerable he testified parking as to space; the value of that based, his estimate of value part, figures given in cent, pеr him Priolo that 50 of the cars, in customers came cent, and customers; per that greater there would be a 50 or these
that future loss of business as a result of the loss parking space was one valuation; in element that amount of beаring has business considerable on the rent that pay, a tenant would and that rental value is an element in fix- ing values; market that the income valuation; was a basis for theory replacement depreciation value and figures, result in the samе since it would become neces-
426 building remaining sary depreciate land the value building for great would sell land and deal more because witness, effect, who space In parking in front. less with no by Priolo, the lessened was called testified fаlling off portion due to a of the of the lot not taken was the build- whatever that There is no Priolo’s business. damaged any ing in portion lot not taken Damage business be- way to Priolo’s other in their use. than space stores parking front of his in causе of the witness. principal was made the basis of conclude jury, we must That evidence before answering sub- jury in it was considered remaining mitting the land be- questions the value of taking. fact, than fore and after the determining In other basis remaining suggested values of the land that witness for Priolo. witness Cole, who placed upon witness stand Joe Priolo then opportunities. testified that his to sell business business was propounded to the witness: This “Now, grocery store case that it is evidence in this gross volume storе owned Mr. Priolo would show profit operating $80,390.34, of sales in net $17,147.42. his customers came That more than one-half of Dolphin Has- at cars and that the location was on Road South kell, and, space off-street head-in after —there was available parking (7) you know what the fair mar- for seven cars —do *4 inbe Dallas ket value —fair cash market value of those business Texas, 10th, County, 1949?” October question, City’s objection The court sustained to the the permitted the to answer it. The Court Civil witness was not ruling, upon Appeals court erred in that held that the trial ground In this we case. alone reversed and remanded the Appeals think the Court of erred. Civil Appeals opinion As we the Court Civil understand holding have admitted was that should been evidеnce upon market extent the value issue of whether and to what remaining de had been after County preciated. opinion quotes in Milam case, we Akers, v. 181 2d 719. It held in approved holding by application of an for writ our refusal 721, ownership therein, of error Texas that where land, improvements thereon are in the and business conducted person resulting injury ad same evidence of to business affecting missible, damage, separate not item of but remaining improvements for the land and being put. That adapted they and were uses to which testimony theory upon of the witness Wolf which the ques- theory upon hypothetical which the was admissible. establish propounded to to the witness Cole tion estimating part remain- in the valuе of one of the factors ing, separate independent item was to establish but requested recovery. made manifest the record. Priolo This is give charge special jury the court to ting in issues submit- to the gro- depreciated market cery business, improve- exclusive of the land and thereon, assignment brought ments and the of error to the Court Appeals was that the trial court was in error in ex- Civil cluding refusing requested and in to submit the refusing issue thereon. The trial court did not err in to submit issue, requested rеfusing and therefore did in not err to proffered testimony. admit the For another reason there was no error trial court’s
ruling. damage Since the principal, to Priolo’s business was the only, if not determining element considered in the market taken, value of the refusing land not the court did not err to submit that same recovery. element as a distinct item of A judgment damages upon an answer to that issue favorable haye to Priolo recovery. allowed double overrule We holding of the Appeals Court of question. on this It duty now becomes our examine the filed brief in the Court of purpose determining judgment whether the of that court should affirmed on some ground properly presented Cox, Inc., in that brief. Refining Humble (Comm. Oil & App.), 285; Co. 16 S. W. 2d Henwoоd, Vanover v. 348, Turning 136 Tex. S. W. points there we find that the first com plains 2Nos. jury which called to determine the land, market value of Priolo’s tract of exclusive condemned, immediately immediately before and taking. after the objection The recоrd discloses that no what ever was made request issues Nos. 2 and and no for might regarding instructions the elements which the *5 answering consider in only objections them. The made charge were, to the court’s first, that it failed to submit an liquor upon fair, issue cash grоcery market value of the distinguished business as property, and, from real second, to special the form of 7, issue objee- No. which latter tion was sustained. The record does disclose that Priolo re- substantially those in court’s like special
quested instead “property” used charge, word except that party provides: “A No. 274 Civil Procedure “land.” Rule of distinctly to the matter charge point out must objecting a to Assuming objection.” grounds of his objects he which given, charges thosе more accurate than requested that any objection to give coupled not with request them given objection an effect as by the court will not be used form S.,W. given. Lennox, Tex. v. Isbell to the issues 920; Co., 119 S. W. Perfect Circle joy Parts v. Mount Co. C. H. Jur., 288; 41 Tex. 186; Blezung Tаxi, 2d 70 S. v. Owl W. point overruled. p. 253. The is sec. assigned to the Court of Another admissibility ruling upon of cer
as error the trial court’s City gave A that tain evidence. witness for the immediately remainder of Priolo’s tract market value of the City by the strip by was increased after improvements. question propounded to the called witness in value increase in and decrease him to exclude the injuries received in common with reason of benefits or community generally peculiar to Priolo and connected enjoyment his use and of his of land. On cross- tract tell of examination the witness stated that he could not property property other benefits that similarly the Priolo received that receive. Motion then made situated would not ground he the witness’ that be stricken only. testifying community court did not benefits overeruling community may err in strike. A re the motion to general constructing improving a ceive benefits or highway, adjacent highway. but the owner of may injury suffer an different receivе from benefit community Ry. Gulf, as a whole. In & F. C. Co. Fuller, 467, 472, following approved 63 Texas this court * “* * charge: you if from evidence further believe improvement plaintiff’s property reason of this has been value, equal enhanced in and any deprеciation this enhancement in value greater to or than caused the construction operation moving thereon, road said of trains you then find will for defendant.” In of Dallas v. Firestone Company, refused), Tire (writ & Rubber it 66 S. 2d 729 held was widening that the owner received benefits because straightening abutting of the street its business. suit, That not a condemnation did but involve opinion pointed just benefits. The out that because got along category businesses in the same street *6 by ap- derived benefits prevеnt benefit would same generally community being special. The pellee case from in that appellee received same benefits not receive the did Dolphin Road where at property that case. of his lot front jog, mаde a provide jog and practically eliminate City able the for a free flow of place on wider of business traffic a matter of cannot held as pavement. It be type and better upon him. thereby conferred was not law that a benefit above, a issue was submitted As indicated finding question of future calling of loss on the jury answered that there profits by Priolo. Since City profits, no such respect for décision with thereto. to this court judgment cannot Our that we affirm conclusion is any рoint assignment pre- Appeals the Court of Civil accordingly judgment of sented to it. It is ordered Appeals of the trial court be reversed and that Court of Civil affirmed.
Opinion delivered June 1951.
ON REHEARING. stating original opinion After in our Court Appeals assignment complaining sustained thе cross of the awarding portion judgment of that of the trial court assigned temporary damages, and that Priolo $326.00 ruling, nevertheless, we, no error in this court to that entered reversing judgment Appeals an order Court affirming having Upon that of the trial court. matter rehearing, apparent called to our attention it is our modified, modified, hereby order should be read as follows: and the same is judgment Appeals of the Court of Civil in so far it recovery reduced the in the court trial in the amount $326.00 disturbed; respects judg- is not it reversed and the judgment ment of the trial court as reduced is affirmed. Opinion July 18, delivered