538 S.W.2d 663 | Tex. App. | 1976
This is a condemnation ease in which appellee acquired a pipeline easement across appellant’s ranch. The jury awarded appellant $2,193.00 for the value of the easement taken, but found that no damage was done to the remainder of the ranch. The appeal contends that (1) the jury finding of no damage to the remainder is against the great weight and preponder-' anee of the evidence, (2) since no damage to the remainder was found the damages awarded are manifestly too small, and (3) the judgment should be set aside because the jury was allowed to consider statements in appellee’s petition and expressions by certain witnesses to the effect that appellant could continue to use his land the same after the taking as before.
In condemnation, where the right of the condemnor to acquire a portion of the land is not contested, the condemnee has the burden to prove the value of the portion taken, as well as the damages, if any, to the remainder. State v. Walker, 441 S.W.2d 168 (Tex.1969). As to the remainder, both the fact of injury, as well as the amount of damages resulting therefrom, are questions for the trier of fact when the evidence is conflicting. Texas Pipeline Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (1950). The reviewing court is not authorized to overturn those fact findings unless they are not supported by sufficient evidence or are so against the great weight and preponderance of the evidence as to be manifestly unjust.
Appellant contends that since the easement bisects the ranch and the owner’s use of the strip is restricted, there is necessarily some damage to the remainder, and a finding of no damage is therefore against the great weight and preponderance of the evidence. But in determining if the remainder has been damaged, the ultimate question is not whether there has been some interference with the owner’s use or enjoyment of the remainder, but whether its market value has been diminished as a result of the taking. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936, opinion adopted); Wolsch v. State, 77 S.W.2d 1062 (Tex.Civ.App. Eastland 1934, no writ). See also Ansley v. Tarrant Cty. Water Con. & Imp. Dist. No. One, 498 S.W.2d 469 (Tex.Civ.App. Tyler 1973, writ ref’d n. r. e.). The evidence here was sharply conflicting as to whether the presence of the easement caused a diminution in the market value of the remainder of the ranch. Five witnesses testified it did and four testified it did not, and all supported their conclusions with credible reasons. In those circumstances, we cannot say the finding is against the great weight and preponderance of the evidence. To do so in the face of the evidence in this record would be to hold, in effect,
Appellant next urges that the judgment should be reversed because of the reception in evidence of portions of appel-lee’s Statement in Condemnation and expressions by witnesses to the effect that appellant could continue to use his land after the taking essentially the same as before. It is contended that these statements amounted to representations that ap-pellee would not exercise, the full rights it obtained from the acquisition, and were but expressions of future intentions which are neither binding nor effective to limit damages, and that it was reversible error for the jury to consider them. It is true that representations or promises by the con-demnor that it will not exercise its rights to the fullest extent allowed by the taking are not to be received as a limitation of its rights or of the compensation to which the condemnee is entitled. Creighton v. State, 366 S.W.2d 840 (Tex.Civ.App. Eastland 1963, writ ref’d n. r. e.); Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App. San Antonio 1941, writ dism’d). But it is permissible to introduce evidence of the reasonably foreseeable and probable uses to be made of the land which at the time of taking would be required in accomplishing the purposes for which it was taken, and the jury may consider these facts along with all other facts a prospective purchaser might consider in reaching a conclusion as to whether the market value of the remainder has been reduced. See City of Pearland v. Alexander, 483 S.W.2d 244 (Tex.1972). As we view the record, the witnesses were not representing that appellee would be restricted to less rights than its taking afforded, but were merely expressing their opinion as to the use which could normally be expected in a taking of that kind and the effect, if any, which that use would have on the market value of the remainder. In addition, we notice that those portions of the Statement in Condemnation which were read to the jury were introduced by appellant’s counsel, and no objection was made to the testimony of the witnesses relating to probable use. Points of Error 4, 5 and 6 are respectfully overruled.
The judgment of the trial court is affirmed.