This is a condemnation suit. The court submitted one issue: “From a preponderance of the evidence, what do you find was the fair, cash market value of Lots 21 and 22, Block 6, NCB 2406, condemned by plaintiff San Antonio Independent School District on January 13, 1956”, to which the jury answered “$5000.00.” In the decree we find this recital: “ * * * that the value of the property as determinеd by the jury herein is less than the award of the Special Commissioners heretofore made in the sum of $5500.00; it is ordered, adjudged and decreed that the owners, in event they shall have appropriated the amount of the Commissioners’ award deposited in the court, shall return such excess of $500.00 to San Antonio Independent School District”, and taxed all оf the costs against the owners of the property. Only defendant Joe Menchaca perfected his appeal to the San Antonio Court of Civil Appeals and the case is before us on transfer order of our Supreme Court.
The decree is assailed on four points. They are substantially:
1. The court erred in refusing to permit plaintiff’s witness, Luсchese, to testify concerning price paid by plaintiff for other properties in the same block, in that plaintiff on direct examination brought out that the School Bоard negotiated for seven properties in such block and reached a peaceful settlement in all but the case on trial.
2. The court erred in refusing to permit рlaintiff’s witness, Lucchese, to testify concerning price paid for six other properties in the same block in that such witness testified that such sales were voluntary as a result оf negotiation.
3. The court erred in not permitting defendant’s witness, Mrs. P. G. Mondes, to testify as to price received by her from School Board for small house and 25x72j4 foot lot, in that she wоuld have testified that she sold the same by voluntary sale for $4000.00 cash, total, including disposal of improvements.
4. The court erred in permitting plaintiff to introduce pictures of defendant’s *365 property, exhibits 1 through 8, in that they were not shown to have been made at the time of taking or reflect the condition at the time of taking of such property.
In appellee’s brief we find substantially this statement: The trial court did not err in refusing to permit a witness for ap-pellee and a witness for appellant to testify as to prices pаid other persons for other property in the vicinity when proper objection was made, it being undisputed that appellee was an independent school district having authority to condemn property for its uses. Appellant complains in his 1st, 2nd and 3rd points of the refusal by the trial court to permit a witness offered by appellant and a sеcond witness offered by appellee to testify as to the prices paid for other properties to other persons in the vicinity of the property condemned. The San Antonio Independent School District is a public free school corporation having power to condemn. It became necessary, by negotiatiоn or through condemnation, for the District to acquire various properties for its uses. The property of appellant was one of those involved in the general area. The District offered the witness Joe Lucchese as an expert on value and he testified that he was employed to acquire the properties by voluntary рurchase if possible and that where agreements could not be reached condemnation suits were filed. He was not asked and gave no evidence with respect to prices asked, offered or paid. On cross-examination appellant attempted to elicit from the witness the prices paid by the District to other persоns for other properties. The District objected to the evidence on the ground that it was irrelevant and immaterial, did not represent a voluntary sale and was not cоmpetent to prove market value of appellant’s property. Appellant also offered as a witness, Mrs. Mendes, who attempted to testify as to the priсe received upon a voluntary sale of her property to the District and upon the same objections the court refused to permit the witness to testify as to the рrice she received.
We think the appellee’s contention is supported by the following authorities: Atlantic Pipe Line Co. v. Fields, Tex.Civ.App.,
After a careful review of the foregoing cases, we-think our courts have uniformly held that prices paid for property by a condemning authority are not admissible to establish market price of the property being condemned because such sales аre not free and voluntary under our rule as to what constitutes a willing seller and a willing buyer. In State v. Carpenter,
In appellee’s brief we find the following statement:
“The fundamental objection to evidence of other sales is they are neither free nor voluntary. In condemnation cases the usual jury charge defines fair market value as that amount a person willing (but not compelled) to buy would pay and an owner willing (but not compelled) tо sell would take. Where purchase is by one having power to condemn, it cannot be free or voluntary. The buyer is under compulsion of public necessity and the seller always faces the direct power to take in event of disagreement. As the courts have said, the seller knows the always existent power and knows it must be exercised or the project abandoned.
“Since such sales are neither free nor voluntary, evidence thereof will not support the definition of fair market value. And as the reason for its exclusion is lack of freedom and want of voluntary action, it is immaterial whether buyer or seller oilers the evidence, directly by a witness for either, or indirectly by cross-еxamination by one of a witness of the other. The reasoning and principle prohibiting such evidence must apply under all circumstances.”
We are in accord with this view.
The case of Robards v. State, supra [
We have considered the fourth point but it dоes not present reversible error.
Believing that the court has entered the correct judgment, and finding no reversible error, the judgment of the court below is affirmed. Since only Joe Menchaca perfected his appeal, the costs of this appeal are taxed against him.