166 S.W. 387 | Tex. App. | 1914
This was a condemnation proceeding instituted in the county court by the city of Ft. Worth against William Charbonneau and his wife to condemn 298 acres of land described in the plaintiff's petition for the purpose of establishing thereon a water reservoir. The land sought to be condemned was situated in the valley of the West fork of the Trinity river near the city of Ft. Worth, and constituted a part of a tract of about 1,100 acres upon which the defendant and his wife had resided as a home for many years. Upon the trial the jury returned a verdict in favor of the defendants for $22,686 as the value of the land actually appropriated by the city, and the further sum of $3,000 as the damage to the remainder of the defendants' tract.
The fifth ground of appellant's motion for a new trial, which is presented as appellant's first assignment of error, complains of the action of the court in refusing the following instruction, viz.: "You are further instructed that, in estimating damages to the plaintiff by reason of the property's being taken and by reason of the damages, if any, to the remaining property, you will not consider, for any purpose, the fact that plaintiff has lived upon the property a long time, that the same is his home, or that he has raised his family upon said property." Appellant's contention is that it was entitled to this charge so as to exclude from the consideration of the jury, in assessing damages, any sentimental value of the lands involved in the controversy. In the court's charge on the subject, no sentimental value was authorized, and we think the special charge requested was properly refused on the ground, if for no other reason, that it required the jury to wholly disregard the fact that plaintiff had lived upon the property a long time and that the same was his home. A relevant inquiry, to which evidence pro and con was directed, went to the value and character of the land sought to be condemned. The defendant Charbonneau testified that it was bottom land; that it was susceptible to irrigation; that he uniformly raised good crops thereon; that in many years there had been but two overflows thereof; and gave his *388 opinion of its value. He further testified that his other land was principally adapted to grazing to which it was applied, etc.; and, as bearing upon the weight of his testimony in these particulars, we think the jury could properly consider the fact of the plaintiff's long residence, and his consequent familiarity with the subjects about which he testified. Even the fact that the defendant had raised his family upon the property tended to show the adaptability to homestead uses. But if immaterial, and as such should have been excluded, the charge required the exclusion of other facts recited, which we think were admissible and proper for the jury's consideration.
Appellant's twenty-eighth ground of the motion for new trial, also presented in its first assignment of error, complains of the defendant Charbonneau's testimony to the effect that the lands in controversy had been for about 30 years his home, and that he reared his family there and did not wish to part with it. This is also complained of as admitting the consideration of a sentimental value. We, however, conclude that nothing prejudicial has been pointed out in these respects. The objection to the evidence was to the whole, and, as we have pointed out, we think it was relevant for the defendants to show their long-continued residence and the adaptability of the land to homestead uses; and the court specifically instructed the jury that they should disregard his statement that he did not wish to part with it. Moreover, the very nature of the suit is such as to show that it was not a voluntary severance of his homestead. We see nothing in the charge, the evidence, or the argument, in relation to these matters, that justifies the conclusion that the jury in fact attached any sentimental value to the land in controversy.
Objection was made to the exclusion of the evidence of J. F. Cook to the effect that he had sold a tract of land, about 139 acres, for cash, about the time of the institution of this suit, for the sum of $40 per acre. While it is held that it is permissible on the issue of the value of lands sought to be condemned to show sales of similar lands in the vicinity at and about the time of condemnation, no such similarity was shown in the present instance as to make the rejection of Cook's testimony reversible error. The witness was permitted to give his opinion of the value of the Charbonneau land, and, in the testimony offered and rejected, it appeared that, of the 139 acres so sold by Cook, but 40 to 50 acres was bottom land, and that the rest was broken. It further appears that the tract was sold as a whole and located some three miles down the river from the Charbonneau land. It was not made to appear whether the bottom land was susceptible of irrigation, or whether it was in cultivation, or even susceptible of cultivation. So that, as stated, we cannot say that the court committed reversible error in the rejection of the testimony. Newbold v. I. G. N. Ry. Co.,
What we have said in disposing of the testimony of the witness Cook applies as well to the testimony of E. S. Hill and others, which we need not, therefore, particularly discuss.
Appellant's fourth assignment is as follows: "The court erred in allowing the witnesses Seyster and Germany to testify, over plaintiff's objection, as to the gross receipts from small tracts of truck land located many miles from the land in controversy, and not similarly situated; said witnesses not having testified as to the net receipts, and the same being an incorrect measure of damages." The witness Seyster testified that he had examined the Charbonneau land sought to be condemned, and that it could be irrigated by pumping water from the river; that he had had experience with lands irrigated in the same manner from the Trinity river; that he was at the time cultivating land near Randall's mill, located in the Trinity river bottoms some eight or ten miles below the land in controversy, upon which he had raised last year 200 bushels of potatoes per acre, and also $105 worth of beans on one acre. The witness Germany testified that he owned some bottom land on the West fork of the Trinity river several miles west of Ft. Worth; that he irrigated four acres by pumping water out of the river and made on it $250 per acre gross; that he made about $500 per acre on pepper, $200 per acre on cucumbers and beans, $300 per acre on onions — these prices being realized on the Ft. Worth market. He was not able to state his exact expenses, but testified that the net profit was about one-half the gross income. We think this evidence was admissible. It tended to show the uses to which the Charbonneau land could be put, and was relevant on the issue of its value, irrespective of the costs of crop production. While located at different points, the land mentioned by the witnesses was shown to be similar to the Charbonneau land and, like the Charbonneau land, susceptible of irrigation, and we see no reason why the jury, in determining the value of the Charbonneau land, might not reasonably consider, among other things, its agricultural possibilities.
In the fifth assignment complaint is made of alleged misconduct on the part of the jury, but we are not inclined to attach much importance to this, and for that reason will not set out in detail the long statement following the assignment. In substance we think it amounts to no more than mere argument on the part of the jurors relating to evidence actually before them, such a Charbonneau's having lived on the place a long *389
time and that it was his home; that, with the bottom land segregated from the rest, he would be deprived of timber, of which, in part, the bottom land was covered; that the natural gas might some time become exhausted, etc. Some of the statements were denied, and we feel no disposition to disturb the discretion exercised by the trial court in overruling the motion for a new trial on this ground. Article
Prior to the act of 1905 (Acts 1905, c.
After the trial court had overruled appellant's original motion for a new trial, it filed a supplemental motion to the effect that, as shown by the opinion of a resident engineer in charge of the construction of the reservoir, the reservoir would fill up with sediment or silt in the course of 30 or 35 years, after which the reservoir would have to be abandoned. The contention is that, this being true, the land would revert to Charbonneau, and that it would be manifestly unjust to now allow Charbonneau the full value of the land, as was evidently done by the verdict of the jury.
Chapter 11, § 3, p. 53, of the charter of the city of Ft. Worth, gives the city power "to condemn property in any court of competent jurisdiction whenever deemed expedient within or without the limits of the city upon compensation duly paid, for any public or municipal use or purpose, and shall be governed in such proceeding by the general laws of the state relative to condemnations." Articles
Affirmed.