Appellant predicates error on both the general charge of the court and the refusal of the court to submit the special charge concerning the burden of proof. He insists that the burden of proof was upon the landowner, and not upon the levee improvement district, to show special or consequential damages to the part of the land not taken for actual use by the appellant district. The appellant was assuming to establish that the amount of compensation that should be awarded the appellee was the value of the 5.56 acres right of way strip. The appellee, the landowner, assumed to establish that the amount of his compensation should be a greater sum than the value of the land actually taken, and he affirmatively laid his claim to award in the further sum of the consequential damages to a part of his remaining portion of the land. Since the only issues to be determined were those of compensation and the amount thereof, and since the evidence in this respect was conflicting, the question upon whom was cast the burden of proving the consequential damages claimed was an important one in the case. The special charge requested sought to have the burden of proof placed upon the landowner to show (1) the remaining portion of the land would actually be damaged through overflow as a consequence of the construction of the levee, and the amount of such damages, and (2) the damages sustained as a consequence of the construction of the levee exceed "the benefits, if any, to the remaining portion of his land." The second clause of the instruction is legally objectionable because it erroneously placed upon the landowner the burden to distinguish and to show to what extent the special "benefits" affected the remaining land.
It rests upon the condemning party to show what special benefits will accrue to the owner, and the extent to which such benefits affect the remaining portion of the land, as a set-off to the damages to the remaining land. Pochila v. Ry. Co., 31 Tex. Civ. App. 398" court="Tex. App." date_filed="1903-02-06" href="https://app.midpage.ai/document/pochila-v-calvert-waco--brazos-valley-railway-co-3935139?utm_source=webapp" opinion_id="3935139">31 Tex. Civ. App. 398, 72 S.W. 255" court="Tex. App." date_filed="1903-02-06" href="https://app.midpage.ai/document/pochila-v-calvert-waco--brazos-valley-railway-co-3935139?utm_source=webapp" opinion_id="3935139">72 S.W. 255; 15 Cyc. p. 898, § 9. The special benefits are not legally considered a part of the compensation required for the taking of the land, but are allowed to be shown as a means of ascertaining what the just compensation should be. Therefore it was not error to refuse to give the special charge. However, the instruction as to "burden of proof" given in the main charge of the court had the effect, unrestricted and broad as it reads, of casting upon the appellant the burden of proof upon all the issues submitted to the jury. Both the value of the 5.56 acres taken and the consequential damages to a part of the remaining portion of the land were issues for the jury to decide. And such instruction, in effect, conflicted with special charge No. 1 submitted to the jury. It is believed, therefore, that there is reversible error in the charge of the court. The statute in this state provides that when only a portion of a person's real estate is taken by eminent domain, the owner is not restricted to compensation for the land actually taken; he is also entitled to recover for the damage to his remaining portion of land. Article 6520, R.S. But, as further provided, the right to recover for the damage to his remaining portion of land is based upon a requirement that the damage be special and peculiar to that tract and is a consequence of the taking. Article 6521, R.S. In view of this statute, it has been decided in this state that the burden of proof of consequential damages sustained by the landowner is on him, and not on the party seeking to condemn only a portion of the land. Ry Co. v. Wyrick (Tex.Civ.App.)158 S.W. 570" court="Tex. App." date_filed="1913-06-07" href="https://app.midpage.ai/document/wichita-falls--w-ry-co-of-texas-v-wyrick-3970430?utm_source=webapp" opinion_id="3970430">158 S.W. 570. The rulings are based upon the ground that damage to land not taken, being in the nature of unliquidated damages, will not be presumed; and unless the owner affirmatively raises the question and shows by competent evidence that he suffered damages to his remaining portion of the land as a consequence of the taking, compensation will be limited to the value of the land actually taken. It is, of course, always open to the condemning party to show that the expected damage to the remaining portion of the land will not occur.
The judgment is reversed, and the cause remanded.