48 S.W.2d 737 | Tex. App. | 1932
This appeal is prosecuted by appellants, Edward W. Roberts and his minor son, John C. Roberts, represented by a guardian ad litem, from a judgment of the county court condemning a certain strip of land belonging to them for highway purposes. Appellee, acting by and through its commissioners' court and in pursuance of Acts 39th Leg. (1925), c. 186, § 14 as amended by Act of the 41st legislature (1930) 5th Called Sess., p. 243, c. 79, § 1 (Vernon's Ann.Civ.St. art. 6674n) instituted this proceeding at the request and in behalf of the state highway commission to condemn said strip of land. The case was tried to a jury on special issues. The substance of the jury's findings, so far as material to this appeal, is as follows: (a) The reasonable value of appellant Edward W. Roberts' interest in the strip of land condemned was $150; (b) the reasonable value of the minor appellant John C. Roberts' interest in the strip of land condemned was $150; (c) the taking of such strip of land and the use of the same for highway purposes will not damage the value of the interest of either of appellants in the remainder of the tract; (d) the reasonable and necessary expense of moving and rebuilding the fence along the western line of the strip taken will be $135. The court rendered Judgment on the verdict, condemning the strip of land involved for highway purposes, and awarding appellants recovery of the respective sums found by the jury as the value of the land taken and the cost of moving and rebuilding the fence. Appellants, being dissatisfied with the compensation awarded in said judgment, present the same to this court for review.
Appellants contend that the terms of article 6704, Revised Statutes, as amended in 1929 (Acts 1929, c. 197 [Vernon's Ann.Civ.St. art. 6704]), restricting first-class roads to a width of 100 feet, apply to state highways. They further contend in this connection that the strip taken, when added to the present highway, will increase the width of the same beyond such statutory limit. The testimony shows that for the greater part of the distance the 47 feet taken added to the present highway will not increase the width of the whole so as to exceed 100 feet. There are places, however, where the distance between the railroad's right of way fence and the west line of the land taken will exceed 100 feet. There is no proof that in such places the railroad's right of way fence is in fact on its line, and that all the land west of the same constitutes a part of the present highway. Said article is a part of chapter 2, title 116 of said statutes, which chapter prescribes the procedure to be followed by commissioners' courts in establishing and opening public roads by jury of view process, and the width of such roads is controlled thereby. Bryan v. McKinney (Tex.Civ.App.)
Appellants present assignments of error in which they contend that the finding of *739
the jury that the taking of the strip of land involved herein will not damage the value of the interest of either of appellants in the remainder of the tract is without support in the evidence. The burden was on appellants to show such damage. The testimony on such issue was sharply conflicting. The trial court overruled the motion for a new trial, and we are not authorized to disturb the verdict of the jury. El Paso Electric Co. v. Whitemack (Tex.Com.App.) 1 S.W.2d 594, 595, par. 2; Bank of Fredericksburg v. Wendel (Tex.Civ.App.)
Appellants in their last assignment of error assail the finding of the jury that the reasonable and necessary expense of moving and rebuilding the fence along the western line of the strip taken would be $135. They contend that such finding is contrary to the undisputed evidence. The only testimony on this particular issue was: "It will cost in actual labor and material the sum of $253.87 to take down and replace the fence along the strip to be taken." This testimony came from one of the appellants, and no detail of the amount of labor and material required or the price thereof was given. Appellant being an interested witness, the jury was not bound to adopt his estimate of the reasonable value of the labor and material required to remove and replace the fence, notwithstanding it was uncontradicted. Kibby v. Kessler (Tex.Civ.App.)
The judgment of the trial court is affirmed.