City of Pearland v. Alexander

ner, force, applies the same and with 108. principal.” 137 S.E.2d of a sum

By depriving the owner the value of related to in safeguarding

county’s services statute offends

vesting principal, Texas 1, Consti

Article Section

tution, as the as well Ann. St. Vernon’s United Amendment

Fourteenth Salt Co. v. Myles Constitution.

States Commissioners, U.S.

Board of (1916). L.Ed.

S.Ct. ap- court of civil judgment of the judgment of the

peals reversed and the

trial is affirmed. court days IS in which parties will have rehearing. file motion for a second PEARLAND, Petitioner,

CITY OF Independent ALEXANDER,

John Execu tor and Trustee the Estate C. H. al., Respondents. Alexander et

No. B-2911.

Supreme Court of Texas.

June

Rehearing July 26, Denied Burns, Burns,

Sears Robert L. & Hous- ton, petitioner. Crooker, Freeman,

Fulbright, Bates & Jaworski, Lange Fred M. and William H. Thomas, Houston, Young, Wiley Angleton, respondents. STEAKLEY, Justice. proceeding.

This is an eminent domain Pearland, petitioner, acquired tract of ten from the Alexanders a surface disposal plant, acres as a site together public for a street with 2.04 acres easement, ease- pipeline for a .046 acres temporary certain construction ment and damages easements. The award respects question. damages, Cannizzo, these is not in What see Austin v. questioned by manner in 153 Tex. 267 S.W.2d 808 Carpenter, the award of severance State v. 89 S.W. $143,000 2d the remainder Alexander ibid 979 and if (1936); error committed, of 810.724 acres was The trial prejudi reached. whether error was judgment requirements court the court cial was affirmed within the of Rule Procedure; appeals. of civil see Texas Rules of Civil Go State, (Tex. mez Leon v. 426 S.W.2d 562 Pursuant court1 to the order the trial 1968). Our conclusion is that reversible response in the to the motion in limine of error by was committed the trial court and landowners, the of trial court in the course accordingly judgments we the be reverse showing by in ex- restricted the direct low and remand the cause for another by amination own its witnesses trial. cross-examination of the witnesses landowners, the ten acre the actual uses of Ry. This Court in & S. F. Co. v. G. C. taking were site which at time of the Fuller, early (1885), 63 Tex. 467 estab- reasonably probable, and foreseeable and lished in the fair market value criterion hence be a factor in the market val- damages. determination severance ue as to the remainder determinations Charges given to such by the trial court tract. submitting approved fairly effect as government to the law the jury, In its submission of the case to damage “. . the measure of the case: . following special gave the trial court thereby is in for the actual loss sustained immediately cru- preceding the fair, plain- salable value of pertaining to the cial market value issues say, to property: tiff’s said that is tract: of, complained reason of defendant’s acts plaintiff’s value, he is lessened in property es- that the surface “You are instructed is entitled to recover the fair and actual of land tate of acre tract fair valuation of difference between the of Pearland condemned property. said . . .” Tract One this case and described as used you before will be Later, Louis, Ry. A. T. St. & Co. a as a sew- of Pearland Henderson, S.W. pre- erage disposal are you authority (1893), quoted another this Court will ex- sume that the of Pearland damages, all approval saying rights enjoy use and its ercise present prospective, the natu- that are full for such property to the extent ral, necessary or reasonable incident of disposal plant.” sewerage compensation improvement constitute the requires to be made which Constitution our error of the granted the writ of We concluded that sev- in advance. Court problem of to resolve which would erance are those particularly procedures, whether these trial necessarily from tak- instruction, naturally or flow giving above operation construction willing-seller established conformed to the other dam- improvement; and that determining willing-buyer mar- method of of the tract to the balance ages caused of severance ket value in the assessment highest it fullest extent and for ordered 1. “It further is therefore taken, it and Plaintiff which legally presumed will ex use for that Plaintiff any introducing entirety hereby prohibited rights regard ercise its less than the effect evidence to in the ten acre tract the surface estate for such be used being One full ten acres Tract No. herein as condemned sewerage plant site, plant.” sewer use pro- may “The to which the condemnor be known with reasonable cer- use tainty must poses property would be devote the taken included. ascertaining dam- considered in . ages to the remainder area. This rule became even settled more condemnee is entitled consideration Carpenter, supra. State It was there has which the condemnor damage reaffirmed part a tract of where although as- right to cannot be inflict use, public land has been taken for a dam put its sumed will be ages remainder tract to be deter damaging most use.” 4-A NICHOLS mined be ascertaining difference 14.24. EMINENT DOMAIN sec. ON its immediately tween market value before and after appropriation, into uniformly recognized has It improve consideration the nature of the development in the and refinement ment, the land taken is use which determining test for sever market value put, be and to all circumstances tend which Carpenter damages ance the State v. present increase or diminish the market appropri is method of trial and submission recovery damages value. The for is which exceptional jury ate in all but cases. The reasonably could been foreseen and is term is instructed the market value determined at the time of condemnation. bring when of price property will the the Pieratt, 23, LaGrange of v. sell, by to fered sale one who desires willing-seller (1943). 243 The obliged sell, bought by is but is not and is willing-buyer test of market value to be under no ne buy, but is one who desires applied and those factors are to be consid buying. jury is asked cessity of The reasonably given ered which be would find the market value of the remainder weight negotiations in between a seller and taking the immediately tract before the Cannizzo, a buyer. City of Austin v. su immediately the thereof after market value pra. latter, taking. of In the determination the instructed to take into consider jury the Camp In Texas Electric Co. v. Service is to the land taken ation the uses to which bell, (1960), Tex. subjected. to the issues The answers be possibilities we ruled evidence based on light the of the ev be are to determined probabilities than be rather reasonable and admitted parties the idence offered incompetent, citing Carpenter, su State As rulings of the trial court. under the pra, re that “evidence should be excluded Carpenter, everything said State remote, lating speculative, conjec the land of the market value which affects uses, injuries, tural are as well as which past itself, regard for having due present the value reflected in market accurately may probable injuries, future property.” saying, of the This is but as difference ascertaining the reflected Cannizzo, compe the of the testimony value, legitimate all the when tency bearing evidence on the issue of of for consid jury properly submitted to taking market value at time of the ; to admit evidence it is eration and weight factors on of reasonable rests those which tend to increase upon all matters of what a the factual determination The present value. market diminish the willing what a seller would sell are which damages recover may landowner buyer willing pay. also An would See may foreseeable, show and he reasonably Cox, A.2d 507 drews v. 127 Conn. probable reasonably uses Commonwealth, 158 Mass. (1941); Taft v. depress the calculated to taken that are Chicago & (1893); 33 N.E. 1046 en and thus remainder tract of value Kline, Ill. 77 N.E. S. R. Co. v. L. recovery Can- damages. See of hance recognized Nichols treatise states nizzo, was (1906). supra, where it of a tract of the value determination following: permits plants taken consideration of all uses to two he knew these which in reasonably adapta- compara which the “probably his would be was, testified, however, ble and for or in reasonable He that each which ble.” become, probability would available within area all in an industrial “vacant public good reasonable time. But the authori- around it” homes and “no within ty required pay should not be severance it.” un distance from disputed acreage on basis uses the tract regarding clear and of the tak- which required taken at time would be probable capacity reflect- so to be size with the Lock present plant, although ed in market value and wood it was shown that permitted weight to give capacity should be such Lockwood a rated had prospective purchaser thirty gallons thirty day, this factor as a million times give. In our size tract would constructed precluded under erroneously view this was after the of the ten acre site. here, parties procedures trial court The issue drawn seen photo appear objection mani- harm graphs fest. of counsel for the reply and the ad photographs landowners.2 testimony of the three value wit- into consistent with other mitted evidence nesses of the landowners was based court, rulings the trial premise that the would use the whole undoubtedly con jury their display plant City of site for a the was re- the and veyed impression the that market value the approach to this in the stricted cross-exam- be issues as tract were to to the remainder ination of These three these witnesses. upon assumption the determined the that expressed the witnesses landowners physical a entire site be covered would opinion damages that to the the plant. their purpose of intro This was the value, e., tract, market i. its diminished by the by the shown duction landowners as was, $98,400. $165,000, $162,500 and copied in City objection of the reply to the of finding of in the sum jury the was margin. the seen, $143,000, which, it is than was more $14,000 in excess of the mean estimates of evident, overriding issue As the contrast, In the value these witnesses. parties the actual concerned between the presented by City the testified to witnesses ten acre City make of the uses the would opinion the the remainder tract suf- that City to site, right the together the of with damages. consequential fered no reasonably which were those establish by the probable. jury told the The court Further, court admitted into evidence the City only not that the photographs depicting large the Lockwood tract as City use the site sewage plants of the of would and La Porte determining the plant, but that was admitted un Houston. This evidence of the re- value and after market testimony of witness before der the a landowner “ jury presume jury to that in this ease is limited reason- Tbe . . The to . fully fully develop they this use probabilities will as be shown can able sewage disposal permitted ten aere site for not be and should the by any just speculate the motion the cases and on That what court this morning, put type improvement for this in limine stood that could be of they they might shouldn’t need ten acres all didn’t . . . One there. they acres, prop- put walk but when probability taken ten on this be reasonable they are entitled erty courthouse of this Houston out not because the of every square dis- with a sewer somebody inch some- cram constructed else has or your else, posal two-thirds of the type to service thing somewhere this the future on into Pearland honor. “ forever, them honor, jury to show we are entitled is not . Your probabilities. looks like.” go acre sewer ten what on reasonable entitled required presume mainder tract it Nat (1958); “to White America, Pipeline ural Gas Co. of 444 S. exercise its only recogniz rights enjoy (Tex.1969), and use and to W.2d 298 as this but state dispos- promissory extent the ineffectiveness of sewerage such a- full view, plant.”3 mitigate damages. al ments reduce In our this instruction or See only could be as a also annotation in A.L.R.2d 364. jury understood presume permitted un Thus, mandate to a full use the entire would be testimony ten der plant, acres for an actual than the Perkins rule to elicit rather promise representation a site for the and facilities that the nature of a or reasonably required; physical would and as a structures erected on the answering taking further directive that acre site after the and before trial, jury market value issues fu was to be would not be increased in the ture; governed by presumption regardless this and that damages any contrary, evidence to the and whether remainder tract should be determined presumed promise or such on or represen use of the entire site the basis of such proba- agree reasonably for an actual that this would not be tation. We would, taking taking. or we ble at time of consistent the whole But not, City sought be reflected in the market value do not understand that this, right of the remainder tract do to do As at such time. As claims so. such, clearly record, the instruction erroneous we understand the claimed weight as a on comment evi- foreseea right show Moreover, probable dence. of ble and uses of the ten acre land- re value witnesses offered at the would be time pur presumption quired accomplishing municipal owners rested same taken; surprising poses and it is not the market for which it was findings jury permitted value reflected the to hear should have consider, weight upon, of their estimates and to this factor the prospective purchaser remainder tract. with all else a in reaching consider a market value deter willWe not detail rulings the evidence respecting mination tract. the remainder of trial court lengthy the in this record. problem This not in Perkins. it say Suffice that in of view the state general agreement is our that the We materially rulings appeals influenced in court of its mar- of the civil on findings by ket points urged by value instruc- other of error ; there, note, however, tion and that error court in the trial and here. We other, respect, present problems points if for no most of these was “reasona- bly again. probably likely calculated cause and did to arise improper judg- cause rendition of an and judgments below are reversed under ment” Rule Texas Rules Civ- for conforma- cause remanded trial il Procedure. opinion. ble to this

The landowner-respondents rely al entirely McGEE, most State, (dissenting). Perkins S. Justice W.2d 157 (Tex.Civ.App.1941, writ dis I respectfully dissent. missed), and cases which followed. We have not prescribing construed Perkins The Alexander tract contains 822.21 procedures or determining rules acres; for it is Creek on the bounded Clear damages, measure severance Texas see east and on the west over a half mile Cole, Power & Light Co. v. frontage on Farm-to-Market Road emphasis.

3. Our 2 quoted requested instruction No. largest undeveloped land) This is tract left The tract sur- below: of Pearland. development. The rounded residential answering you Special “In Issue No. tak- of the tract jury found that value are instructed that the term ‘uses to $2,200per $22,000, acre. There en parcels which the condemned are to be expert opinion testimony to the ample subjected’ means use ten acres of of the of the highest best use effect sewage disposal plant land as a site for pur- be for residential remainder would land as a and use of the 2.04 acres of poses. disposal public for a street. Use and maintenance includes erection site that was chosen 10-acre approximate structures for the sewer was located reasonably inci- subject prop- and all uses which are center of the east line thereto, open spaces dental such as is within erty. The located thereon for ornamentation, air, point light, appropriate every on the almost clear view from vehicles landscaping, drives remaining and from the Farm-to- for park- automobile pedestrians, on the Opposite this tract walks road. Market for replace- areas, repair is a areas road side of the Farm-to-Market west ment, facilities, storage and recreational from the sew- shopping Extending center. public for a Use employees. areas age disposal on the side east public, in- right tract, ex- street includes wide road easement the 40 foot defendants, walk cluding line tends the west and divides in- and uses the street vehicles on road easement ex- drive tract. Under the large (Tr. 41.). [Emphasis cidental thereto.” sewer line. tends the trunk added.] points contend City’s first sixteen upon retrial should be obvious It Appeals erred Court of Civil its witnesses this case holding erred Trial Court light, “open spaces and testify as to the in Lim- sustaining the Motion landowners’ ornamentation, air, land- appropriate ine, admissibility rulings its of evi- on the walks for scaping, for vehicles drives therewith, approv- dence and its consistent em- areas pedestrians and recreational charge to given al of an in the promise saying, “I ployees.” Is the jury concerning matter. same sustaining the By you garden” ? a rose complains order of the properly the Trial Court Motion Limine sustaining court the Motion in Limine promissory statements. prevented such which reads as follows: is whether or issue in this case The true legally presumed “It is that will Plaintiff dam- of severance not the amount rights regard exercise its to the en- damages to the ages has been awarded tirety of the surface the 10- estate of sufficiency of remaining properties. acre tract . for use as a upon by the passed this evidence has disposal plant site, to the extent fullest “no evi- We have Appeals. Court of Civil highest and for the is use for which it ma- this Court. The points before dence” taken, hereby prohibited and Plaintiff is suggest there not that jority opinion does introducing any from ef- evidence to the support jury verdict. is no fect that less than the full ten acres will complains following City also plant.” a used such sewer in the Court’s contained majority opinion

The error of the in in- charge:

timating granted that the Motion in Limine surface es- instructed that the

by improper clearly Trial Court was is “You land acre tract of by (City evidenced tate Plaintiff’s Pear- by City condemned Any of Pearland effort of the to mini- condemnor this damage proof case and described by as Tract in mize its such intention One the evidence you by rights sought before will be use less the full being used than by consistently Pearland as a site for a has been denied our Texas State, age disposal sew you In are to courts. Perkins v. [er] presume dism’d), will (Tex.Civ.App., writ its rights enjoy strip exercise and use and State condemned a narrow off property to the full extent such a front of homestead. The the landowner’s sew[er]age plant.” strip contained ornamental trees shrubs, honeysuckle bushes, hedge, rose A similar instruction approved has been pipeline drainage water ditch. Over at least appellate twice a Texas court. objection, permitted witness State’s Corpus Polasek, Christi v. 404 S. testify present policy 826 (Tex.Civ.App.1966, h.); W.2d n. w. Highway to re- State Commission Corpus Nemec, Christi v. 404 S. shrubs, etc., rights-of- highway move (Tex.Civ.App.1966, h.). W.2d w. n. way they unless were hazardous to traffic. holding In in admit- the Trial Court erred Nowhere instruction does the ting testimony, such the Court said: Court instruct jury they pre- must sume injurious uses of the tract most appropriator probability that “The presume remainder or most value de- exercise, or the fact that there will pressing uses. The the land- present exercising, is no intention of owners’ predicated value witnesses was not acquired, rights full extent presumed damaging most use or should not be considered reduction that a plant every would be constructed on damages, nothing where there square foot of the ten acre un- site. It is prevent rights, a full of such exercise disputed that the entire ten acres at the appro- presumption since that the time of trial used for being priator rights will use exercise his disposal plant. The entire 10-acre site is enjoy full taken to the enclosed an cyclone unattractive fence. [Emphasis extent.” 20 § C.J. This premises” constitutes “full use of the added.] contemplated by the instruction. Con- State, Creighton The Court said in trary to the majority observation in the page (Tex.Civ. S.W.2d at presume use,” must “full it is ref’d, App.1963, e.): n. r. writ undisputed in this record that the entire 10-acre tract now in “full use” presumption is “The State City of Pearland. rights enjoy exercise its and use and legal extent.” property taken to full

Although alleged has the neces- sity for a quota 10-acre site for sewage plant set forth in the above rule as purposes and long had admitted that it tions has Texas has the been followed right to use State, (Tex. the entire surface for such courts. Hill purpose, City 1956, h.); City Civ.App. nevertheless contends n. v. w. Strickland it right Friona, has (Tex.Civ.App. to offer evidence to 254 show 1956, “in all ref’d, reasonable probability” e.); it r. v. writ n. Wiseman would State, not exercise full rights (Tex.Civ.App.1966, its “in 253 406 S.W.2d ref’d, ; City Corpus forseeable Christi City e.) future.” writ The n. r. Polasek, its pleadings supra. has never v. Natural limited or re- See White right America, stricted its 444 Pipeline Company of use the entire surface S. Gas sewage plant purposes. (Tex.1969); If it no Texas Power & had W.2d acres, Cole, intention to Company use ten Light could condemned a smaller site. also Nichols (1958). See Special Domain, 4A, findings jury in answer to 14.24; Eminent 7 A. Vol. § found page Issues No. 4 and No. 6. 364 at to the effect L.R.2d § (4) value of the actually what condemnor that the market that it decreased, the market plans (6) or to do that determines the does taking was of the remainder after damage but rather it ac- value quantum what $143,000.00. $1,640,592.80, a decrease of quires right For additional cas- do. sharp Rayburn, on these issues was evidence es see Texas Law Condemna- Holdridge, 136; Ringer Am.Jur., and Sid Eminent P. tion conflict. V. § witnesses, re- 61; p. city’s testified Vol. 29A Emi- Domain § C.J.S. Nichols, taking. Domain, 658; by the p. was enhanced nent Vol. 5 mainder § Alexander, others, Domain, Charles Among the Law of Eminent 16.11 § John McGlathery gave Osenbaugh Marvin (1969). support jury’s an- that would clearly set reasons the rule are swers to these issues. Nichols, supra: out in sup- summary A brief evidence words, must made payment “In other be Special Issues port jury’s answers acquired, rights for the which have been set forth below: No. 4 No. 6 is not the more limited use to devote the may intend condemnor expert City engineering 1. The testified is not— property taken. The March, 1966, a 10-acre sewer intend to use does condemnor How in order to serve site was chosen rather, right property? but, —What — of the 9000 needs from 6000 acres acquired? rea- to use has been Various other of Pearland. The acres of the courts to given sons have Long- be served 3000 acres would support conclusion: the above wood He further testified just actually the first unit constructed money payable in “(1) Damages are about covers unit of the sewer substi- condemnor cannot present Pictures of of an acre. mitigate damages i/sth promises tute and its introduced into evidence were thereof; in lieu operations explained. piece- may paid “(2) Damages be meal, payable once and are site developer had chosen the If all; have locat- plant, he would boundary in order to line corner ed requires payment “(3) The constitution many hide the facilities compensation. just full and ex- possible. This is prospective homes as distinguished, is to foregoing actly “The do. The same did not what course, (a) the cases where 2.- from those reference to the argument is made limited, rights are (b) roadway certain ease- foot wide 04 acre condemnee, (c) the had reserved to the At trial ment. the time of otherwise agreement use is as to future easement a narrow on the constructed binding approximately form.” 10 feet shell-topped road It is open ditches on both sides. wide with dis- upon above Based the authorities incon- eyesore in a manner constructed an special in- cussed, I hold that development of a first sistent with the struction, sustaining Motion the order type road This is the class subdivision. Limine, rulings upon the admis- and the appear in a substandard subdi- that would consistent therewith sibility constructed has also vision. proper. side of along wire fence the west barbed together with transmission By the easement points its 18 contends 17 and along the same support poles, and lines cross arms there is no evidence

253 and electricity side of the “Insufficient Evidence” Points Er bring easement to ror, 361, plant. sewage into 364 (1960). This construction Tex.L.Rev. by eyesore, splitting creates an sewage The evidence shows that creating Alexander tract and hindrance located this 10-acre tract will orderly development future the Alex- larger serve a much area than the remain- undisputed ander It is and tes- remainder. lands these landowners. it is While by City’s tified to vat witness that “the might true that the Alexander’s remainder usually every overflowed time it rained.” availability enjoyed sewage have Thus, sewage fecal matter and other raw sewage plant, but 10-acre

pollutes adjoining area Clear acreage neither would the other which will Creek. by plant. served All of the sur- rounding acreage

3. will also benefit The landowners offered in- presence cluding sewage plant. pictures, to of this 10-acre Al- demonstrate that from sewage time to time exander lands raw overflowed from received ground the tanks on to ulti- on the 10-acre tract down produces mately Clear offensive odors Creek. That same was and noises and presents ugly unpleasant appearance. fur- an and created odors and unattractive unsanitary. ther Strong that same ob- gave The Trial Court noxious odors emanate from this first unit customary connection with extending up in all directions for distances Special Issue 6:No. to 1500feet. 4. coming Loud large noises blow- “Excluding value, any, if increase ers which pump air into can open vats value, any, by decrease in reason in every be heard far direction as as 1200 injuries benefits received defend- feet from the ants in common community with the them, generally, peculiar and not plant, ugly road, substandard ownership, connected their use and fence, barbed wire poles ditches and enjoyment particular tract of land crossbars are nearly visible from every out Parcels been con- of which point on the Alexander tract and from Pearland, demned across the road on west. the uses to into consideration parcels to be which the condemned are those, Taking and other facts into con- pre- subjected, you what do find from sideration, expert witnesses concluded ponderance was the mar- of the evidence that the value of acreage within 1000 acre ket value of the defendants’ 810.724 (98 1500 feet acres) was de- immediately aft- remainder tract of land average creased an 50% 75%. acquisition parcels said er ” passing upon In the lav/ of “no 18, 1966? City of on March evidence,” appellate courts must consider only approved in- supports This Court has the above which the jury Carpenter, verdict and only consider struction. State the facts cir Article (1936). cumstances which tend See to sustain ver Moreover, reject dict. we Ann.Texas Civil Statutes. must all evi Vernon’s dence and inferences on the contrary Pictures 10-acre finding jury. Cartwright were admitted into evidence. Costs Canode, also 696; the sewer lines and of the were Big Tex. 171 S.W. gers Inc., City’s System, wit- v. Continental Bus 157 admitted into evidence. Tex. lands (1957); nesses testified that the Alexander S.W.2d C. & R. Transport, Campbell, City’s Inc. v. specially at- benefitted. Calvert, 191 (Tex.1966); torney argued the Alexan- “No Evidence” contact stabi- plant 4. That The benefitted. specially were der lands disposal plant. type lization otherwise. jury concluded capacity of has the 5. That this forth set Under 1,200,000 day. per gallons is a benefit community above a fact, one to be of law and mixed regularly plant has been 6. That Gainesville, H. & by a jury. determined Quality inspected by the Water Hall, 14 S.W. R. W. Co. Board. County, 37 Wilbarger S. (1890); Hall v. affirmed, complete de- gave a 7. then Walsh (Tex.Civ.App.1931, W.2d step plant processes Rayburn, scription 797); App., 55 S.W.2d Comm. of Condemnation, by step. (1960), § Law Texas page at 423. 138.2 being emitted 8. is no odor That there plant. from ample competent and credible is There support the probative force to evidence of along 9. That no odor there Issues Special in answer jury’s findings creekbed. downstream the hold- agree with 6. I and No. No. $290,638.- of Civil and Court 10. the sewer cost ings of the Trial Court That points. Appeals on these 05. says: $164,808.00. line majority opinion “What 11. That the trunk cost by the is the manner questioned 12. tract de- That Alexander damages of severance the award of advantage great from the rive ” . Dur-

$143,000 remainder. trunk line. sewer City’s experts contended ing the trial damage to no the remainder put that there was place a sewer 13. That best special bene- enjoyed —that the on the Alexander tract Court, and Court jury, the Trial fits. The purposes would be subdivision contrary. Appeals to the of Civil found middle. suggest majority does plant on the 14. actual condemned support no there is prop- feet of the within 75 verdict. erty adjacent re- line the Alexander majority Court states that the Trial mainder. showing uses restricted just this is 15. Walsh testified reasonably fore- of the tract which plant. first unit of sewer taking. C.

seeable the time William at Walsh, Engineer Registered Professional subdivisions built 16. That there are City, testified and witness for the plants in Houston around sewer following matters: $50,000. up ranging with houses 5,- population of had a

1.That Pearland the Alexanders would have 17. That approximately and had sewage plant construct central 1,200 1,400 residences. $164,000 trunk line build and the septic 2. time of trial Pearland tanks That at the subdivision as 6,500 population impractical and an absent had about would have been city plant. additional 300-400 residences. designed super-

3. That his firm That subdivision would need a city larger plant than the one the vised construction has built. 2,400 sewage 19. That the plant home subdivision on 32. That will serve 6,000 9,000 the Alexander remainder would of the in re- acres Pearland. quire larger plant than the exist- 6,000 33. That acres would be served ing one the condemned tract. the reason 10 acres were taken. blowers, 20. That 75 they feet from the opinion The majority wholly fails could not be heard. point any specific ruling out on the admis- plant 21. That the creek below the sion or exclusion of evidence which would crystal clear. constitute reversible of error. All rulings Trial Court’s were consistent with Department 22. That the State Health sustaining order Mo- landowners’ monthly inspections has of the ef- tion in Limine. That order was not erro- fluent. neous, majority opinion and the does not so entirely proper. hold. That order was require That the 800 acres would city put trunk line like the had in City sought to condemn the acre purposes. for subdivision disposal as a site a sewage plant for with “supply pipe 24. That of reservoirs or stand for cost such a trunk line sewers; water $70,000 $90,000. vats, works or . . . Al- pipes teration pipes,” and other Art. etc. appraisal 25. That the landowner’s wit- 3265, Vernon’s Annotated Texas Civil ness was erroneous when he as- Statutes, damages directs as the rule existing sumed he would tie on such cases that evidence heard “as shall be lines because that been would have sought value of the to be impossible. condemned and as to the . . . that will result the remainder such 26. That order to build the subdivi- owner, property belonging any, to such sion sewage without plant on prop- reason the condemnation of the site, the condemned the trunk and erty, purpose and its employment lateral very lines would for which it is to be ...” expensive condemned. and a lift station would for judgment of the Trial Court awarded be required. City not have did simple title in and to fee capacity to dispose sewage “[t]he par- of the ten acre surface estate without additional facilities. cel of use as a land . site for 27. That the old was some dis- disposal plant. ...” sewerage tance from Clear ef- Creek sought thus the full ten acres as a site fluent discharged into a ditch disposal plant judg- for a and the ran into Clear Creek. title to the ment of the Court awarded to the full ten acres as a site 28. That Walsh was familiar with the in limine did no The order new number three prohibit from intro- more than downstream from the on the ducing that “less than the full ten Alexander tract. “be used for such sewer acres” would 29. That number three on 2.96 plant.” acres. foregoing Even if the order was errone- ous, constitute did not reversible error. 30. That other subdivisions in the pointed per As out our curiam area, houses were built after and Richardson, Bridges plants. close sewer purpose (1962), sewage plant pollutes 31. That type prevent orders of this is “to the ask- Clear Creek. making prejudicial questions and the respective of their theo- counsel of ments presence prejudicial statements erroneous of the issue in the case were ries do not eliminate Such orders jury.” Indeed, such statements availability prejudicial. necessity showing the presence jury. were made out they preclude do inclusion nor prop exceptions at the in a bill thereof Finally, judg- it be noted that “Before course of trial. er time major- ment reversal and remand error, correctly he must claim party can holding ity opinion solely is based on its an adverse and secure offer his reversible Trial committed Court Corpus ruling court.” from the by giving error Nemec, (Tex. Christi 404 S.W.2d v. on the evi- which constituted comment Christi, 1966, writ). no Civ.App., Corpus opinion majority I submit that the dence. Indemnity Co. Accident and Hartford Cf. error, that this wholly fails demonstrate McCardell, 1963). (Tex. any, inter- was harmful under ex only offered and relevant evidence of Civil pretation Texas Rules of Rule opinion tes Court was cluded the Trial Procedure. that, while expert timony City’s witness capable of accommo- judgments site was the ten acre I affirm would gallons of dating plant of million twelve courts below. “reasonably per day, was not it ever he con- foreseeable that there would GREENHILL, CALVERT, J., J.,C. having plants on the ten acre

structed join in this dissent. gallons greater than six million capacity testimony day”; per witness, given expert on cross

landowner’s

examination, in error acres”; they they needed

“when said going need it for they “not years.” The net ef- years and

years and it is that fect of this HIGHT, Petitioner, George probable reasonably ten acres it was con- all ever use it demning purpose which was Respondent. Texas, The STATE provisions of Art.

condemned. Under No. B-3137. above, V.A.T.C.S., such testi- quoted Supreme Court Texas. properly admissible and was mony was not therefore, suggest, I excluded. July 12, 1972. precluded by the Trial Court’s or- offering any admissible in limine from der probable reasonably uses

evidence of

condemned

foreseeable future. photographs into

Admission evidence La Porte

of the Lockwood and Court

plants been held has not

erroneous, further. need not be noticed point, how- be taken on

Notice should at

ever, majority not look do only at unfa- but

“whole record” suggest- City. Neither is

vorable to the footnoted state-

ed the Court that

Case Details

Case Name: City of Pearland v. Alexander

Court Name: Texas Supreme Court

Date Published: Jun 28, 1972

Citation: 483 S.W.2d 244

Docket Number: B-2911

Court Abbreviation: Tex.