This is аn eminent domain proceeding. Appellant, Southwestern Bell Telephone Company, condemned an easement lying on the East side of appellee’s 154-acre tract of land for the purpose of laying an underground communication cable. The tract condemned was 10 feet in width and 3,515 feet in length and covered an area of 35,-152.92 square feet or .807 of an acre. The easement extends along the west side and is contiguous to State Highway 34 connecting the City of Terrell, Texas, with Interstate Highway 20 and lies within the city limits of the City of Terrell. Appellee, Robert K. Ramsey, stipulated that the telephone company had a right to condemn the easement, and that all jurisdictional requirements had been met and that the only matter in controversy was the issue of damages. Prior to trial appellee filed a Motion in Limine judicially admitting that he owned not only the 154 acres adjacent to the easement but owned a total of 320 acres adjacent and contiguous to the ten foot easement and that the land was used as a unit for grazing purposes. Appellee further stipulated that he waivеd damages to the remainder of the 320 acres except for a strip of land 240 feet wide abutting and adjoining the easement running along the entire length of the easement and containing 843,669 square feet or 19.36 acres. Appellee also alleged in his Motion in Limine that the market value of the 240' strip adjacent to the easement and being near Highway 34 was much higher than the over all per acre value of the *470 remaining land on which he waived severance damages and prayed for an order prohibiting the telephone company from showing that he owned other land other than the 240' strip adjacent to the easement. The trial court granted the Motion in Limine and the cause was tried and submitted to the jury as if the entire remainder of appel-lee’s property, after the taking of the 10-foot easement, consisted of only the 240' strip containing 843,669 square feet or 19.36 acres. In response to the special issues, 1 the jury found (1) that the market value of the 35,152.92 square feet of land taken for the easement immediately before the taking was 6<p per square foot; (2) that the market value immediately after the taking was 4$ per square foot; (3) that the market value per square foot of the remaining 843,669 square feet lying 240 feet deep adjacent to the easement immediately before the taking was 6<t per square foot; and (4) the market value immediately after the taking was 4$ per square foot. The trial court rendered judgment on the verdict for appel-lee in the amount of $17,576.44. After its motion for judgment non obstante veredicto and its motion for new trial had been overruled, the telephone company perfected this appeal.
We affirm.
Before discussing the points of error, we will undertake to summarize some of the pertinent facts established by the evidence. The record reveals that at the time of condemnation appellee used the 320-acre tract of land as a unit for grazing purposes. All value witnesses, including a witness called for the telephone company, testified that the highest and best use of the 10' easement condemned, as well as the adjoining 240' strip, was for commercial or industrial purposes and that the 250 feet adjoining the highway was reasonably adaptable for such purposes and that other land in the immediate vicinity had been sold and used for such purposes.
All value witnesses were interrogated with reference to a plat prepared by appel-lee showing the 10' easement running along the property line abutting the highway and the 240' strip adjacent thereto. A summary of their testimony, together with the verdict of the jury is as follows:
*471
By the first, second and fifth points, the telephone company complains of the action of the trial court in permitting appellee’s expert witnesses to testify as to the market vаlue of the 10' easement taken. Appellant objected on the ground that the 10' easement taken was not a self-sufficient economic unit and as such it had no independent value. The telephone company contends that under the holding of
City of Tyler v. Brogan,
We fail to find any authority in support of appellee’s broad proposition that in all instances of a partial taking, the exclusive method for valuing the part taken must be as a part of the whole. Contrary to appellant’s contention, the holding in
Brogan
does not stand for such proposition. The rule that the part taken may be valued as a part of the whole, and not as if it stood alone, has been imposed in some cases because ordinarily this relationship gives the part taken—particularly where it is a narrow strip—a greater value. 4A Nichols on Eminent Domain, sec. 14.231. The purpose of the rule is to protect the condemnee and assure him a just award, because otherwise the part taken would normally be useless and valueless if considered by itself.
City of Tyler v. Brogan,
supra. Since the foregoing rule is obviously for the condemnee’s benefit, such method of valuation is optional and constitutes only one of the several methods of valuation available to the con-demnee. Consequently, the landowner in the instant case was not compelled to value the easement taken as a part of the whole, but had a right to introduce testimony showing market value as if the part taken stood alone as severed land.
State v. Carpenter,
The fact that the 10' easement taken was not economically self-sufficient is not relevant to the issue of value. The question of whether the tract taken is or is not economically self-sufficient is a matter to be considered only in determining whether or not the landowner may claim severance damages to the remainder of his land.
City of Richardson v. Smith,
By the third point of error, the telephone company urges that the trial court *472 erred in permitting the landowner to waive severance damages to the remainder of his 320-acre tract of land, except for the arbitrarily designated 240-foot strip adjacent to the 10' easement condemned. As we view the record, the proposition is without merit.
Ordinarily a landowner has a right to claim severance damages to the entire remainder provided it is contiguous and there is unity of use.
City of Austin
v.
Capitol Livestock Auction Co.,
Under the pleadings and the evidence, it is clear that the appellee proceeded upon the theory that the taking of the easement along the highway frontage caused him to suffer damages to the most valuable part of his land. The evidence shows that land adjacent to a busy highway is much more valuable than that situated further back from the highway especially where its best and highest use is for commercial or industrial purposes. He conceded that the taking of the easement did not interfere with the use of, or caused damages to, any of his remaining land except the 250' strip having highway frontage on State Highway 34. In view of his admission that the telephone company had a right to condemn and that the only issue in controversy was the value of the easement taken and the damages to the remainder consisting of the 240' strip adjacent to the easement, the burden of proving damages to the land was cast on him as the landowner.
State v. Walker,
Irrespеctive of whether a landowner draws an arbitrary line showing the perimeter of his claim for severance damages, he would be permitted to arrive at the same result by offering proof showing that only a specified area was damaged. A landowner, as well as the condemnor, can always offer proof showing how far the easement affected the whole tract of which only a single strip was taken.
For a landowner to claim severance damage to his entire remainder would, in some instances, border on the absurd. Suppose, for instance, a landowner owned a strip of land 10 miles long and 1 mile wide and that an easement such as this was condemned across one end of the property. In this situation the landowner would be hard put to argue that the easement taken resulted in damages to that part of the land at the opposite end situated 10 miles away.
We have been unable to find any authority, and have been cited none, denying a landowner the right to waive severance damages to a part of his remaining land, nor have we found any authority which would require a landowner to claim damages to all of his remaining land. We see nothing inherently wrong in allowing a landowner to claim severance damages only to a specified part of his land adjacent to the part taken. Appellant’s third point is overruled.
Under the sixth point appellant complains of the action of the trial court in *473 admitting, over its objection, appellee’s Exhibit No. 1. Appellant contends that the exhibit “misrepresented” to the jury that the appellee owned only a 240' strip of land adjoining the 10' easement, whereas appel-lee admitted he owned 320 acres of land. We overrule the point.
Appellee’s Exhibit No. 1 consists of nothing more than a map or a plat showing Highway 34 with the easement colored in dark red and the 240' strip colored in light red. In view of our conclusion that a landowner is authorized to waive severance damages to a part of his remainder, the exhibit showing nothing more than that part of the remainder on which severance damages was claimed was clearly admissible.
Next, appellant complains of the action of the trial court in refusing to strike the testimony of appellee’s value witness, E. P. Curry, because he gave no reason as to why or how the 240' strip adjacent to the easement suffered severance damages, citing the holding in
Tennessee Gas & Transmission Co.
v.
Zirjacks,
Generally, where a party claims severance damages to land, he must show how and why the taking caused damages to the remainder and the relationship of the same to market value.
Tennessee Gas & Transmission Co. v. Zirjacks,
supra;
Texas Electric Service Co. v. Vest,
Appellant next contends that the trial court erred in denying its motion for judgment notwithstanding the verdict on the ground that there was “insufficient” evidence to support the jury’s answer to special issue No. 4 finding that the value of the 240' strip after the taking was 4<p per square foot.
Rule 301, Texas Rules of Civil Procedure, 2 does not allow the rendition of a judgment notwithstanding the verdict on the ground that there was “insufficient” evidence to support the finding or that thе finding is contrary to the preponderance of the evidence. 4 McDonald Texas Civil Practice, sec. 17.32 (1971 ed.).
In view of the statements made under the argument in the brief, it appears that appellant may have intended to say there was “no evidence” to support the jury’s finding on this issue because none of the expert witnesses testified that the value after the taking was as low as 4<t per square foot. If such be the case, we find the point to be without merit. The testimony of the expert witnesses is set forth in the chart above and will not be repeated here. In addition to the opinions of the expert witnesses, the record also contains testimony of other comparable sales in the area. . The telephone company’s own expert witness testified he found a comparable sale where land in the area had been sold for as low as 3.2$ per square foot.
It has been generally held in condemnation cases that opinion evidence as to value is not conclusive. A jury may consider and accept or reject such opinions or it may find its own opinion from other evidence such as comparable sales, or by utilizing its own experience in matters of common knowledge.
Roberts v. State,
We find no merit in appellant’s points 10 through 18 contending that it was error for the court to submit the four special issues requiring the jury to find the value on a square-foot basis and also that the court erred in refusing appellant’s requested special issues seeking a finding of value on an acreage basis.
Appellant objected to special issues numbers 1, 2, 3 and 4 and the ground that the submission on a square-foot basis amounted to a comment on the weight of the evidence.
The testimony shows that when land is suitable for commercial or industrial purposes, it is usually sold on a square-foot basis. The testimony of appellee’s value witnesses, Ferguson and Curry, valuing the land on a square-foot basis, went into the record without objection. Further, appellant adduced testimony from its own expert witness valuing the easement on a square-foot basis. All of the expert witnesses valued comparable sales on a square-foot basis. Insofar as we have been able to find, none of the expert witnesses gave any testimony valuing either strip of land on an acreage basis. In view of the fact that all the expert witnesses valued the land on a square-foot basis and thеre was no evidence as to the value on an acreage basis, the trial court was obligated to submit the case on a square-foot basis. Consequently, we fail to see how it can be said that the submission on a square-foot basis amounted to a comment on the weight of the evidence.
*475
While appellant argues on appeal that the submission on a square-foot basis was calculated to confuse the jury and cause them to miscalculate the damages, no objection was made to the issues on such ground in the trial court. Therefore, appellant’s requested special issues, even if in correct form, are not a substitute for failure to object.
Southwestern Settlement & Development Corp.
v.
State,
In any event we do not believe that the submission of the issues on a square-foot basis could have caused the jury to miscalculate the damages. The record shows that the telephone company’s attorney, over appellee’s objections, was permitted to interrogate the value witnesses and visually demonstrate before the jury the amount of damages the jury would be awarding for each strip in the event the jury accepted the testimony given by each witness. Consequently, the jury knew how much money, in dollars and cents, appellee would be awarded under the testimony of each of the value witnesses. For this reason we fail to see how appellant could have been harmed by the submission of the issues on-a square-foot basis.
State v. Thompson,
Appellant next complains of the trial court’s refusal to give its requested instructions numbers 1, 2 and 3.
Requested Instruction No. 1 was completely covered in the court’s charge, except for the following phrase: provided, this cable should be placed at a depth not to interfere with the ordinary use of the land.” We find no error in the court’s refusing to give this instruction.
At the time of trial the telephone company had laid the telephone cable on the easement at a depth of approximately three feet. During the trial much testimony went into the record, without objection, showing that the shallow depth of the cable would interfere with the installation of wаter and sewage lines on the 240' strip because lines of this type would have to be laid underneath the cable. In view of this, we think the instruction would have been somewhat confusing and possibly harmful to appellant in that the jury might have been led to believe that the telephone company failed to comply with the covenant set forth in its petition for condemnation agreeing to bury the cable at a depth so as not to interfere with the use of the land. The record is replete with testimony showing appellee could have requested the telеphone company to lower the line. Upon viewing the record as a whole, we do not believe it can be said that the failure to give such an instruction was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434.
By requested Instruction No. 2, appellant sought to have the jury advised that the appellee would continue to be the owner of the land. Appellant made no objection to the charge on this ground and, hence, waived its right to complain. Rule 274.
In Special Instruction No. 3, appellant requested that the jury be instructed that the appellant’s right of ingress and egress was limited to the 10' easement area only. As we view it, such instruction was not necessary.
Telephone company specially denied in its petition for condemnation that it sought any right of ingress or egress over any part of appellee’s land except the 10' easement. There is nothing in the record raising any issue in this regard. Consequently, any such instruction would be superfluous. Appellant’s point nine and points nineteen through twenty-one are overruled.
The twenty-second pоint complains of the court’s definition of the term “easement” and also complains of the court’s refusal to submit its requested instruction No. 3 defining the term.
The court’s charge contained detailed explanations of the rights, duties and respon *476 sibilities of the parties with regard to the use of the easement. Among other instructions the court instructed the jury as follows: “The term ‘easement’ as used in this case means an estate in real estate and the one having the easement has the dominant estate and the one on which the easement is imposed has thе servient estate.”
Appellant objected to the instruction on the ground that it was not a “legal definition and it is an attempt to fact find and it will confuse the jury and suggest to them dominant and servient and it is prejudicial.”
In 21 Tex.Jur.2d p. 124, sec. 2, it is stated:
“An easement is a burden or charge for the benefit of another on the estate. The tenement on which the burden is imposed is called the subservient estate, while the one benefitted by it is commonly designated as the dominant estate.” Citing West v. Giesen,242 S.W. 312 , 319 (Tex.Civ.App., Austin 1922, writ ref’d).
Where the trial court gives a definition or instruction, the party not satisfied with the same is required to file an objection specifically and clearly pointing out wherein it is claimed that the definition or instruction is insufficient or in error. Rule 274;
Yellow Cab & Baggage Co. v. Green,
Points thirty-seven through thirty-nine complain of the action of the court in receiving in evidence, over appellant’s objection, comparable sales Nos. 6, 7 and 9.
Appellant first objects to the sales on the ground that they were not comparable in size and that the same amounted to a showing of comparable sales of commercial property whereas appellee’s land was a raw acreage.
It is now settled law that evidence of comparable and similar sales located anywhere within the metropolitan trade area, if urban property is involved, is admissible in evidence.
City of Austin v. Cannizzo,
There can be no absolute formula or definition of what constitutes similar or like property. Certainly, comparable does not mean identical. The determination will vary with each particular fact situation. Such elements as nearness in time, location, character, situation, usability and improvement may be considered as shedding light on the value of the land in question. Manifestly, the trial judge in applying so vague a standard must be granted a wide discretion, and his action will not be overturned unless an abuse of discretion is shown.
Holcombe v. City of Houston,
Appellant further objected to comparable sales Nos. 7 and 9 on the broad ground that they were leases rather than comparable sales. The evidence shows that both leases were ground leases on which the lessee had made extensive improvements. Appellee Ramsey, who qualified as an expert witness, testified that in placing a value on the land covered by the two leases, he used the capitalization of income approach. Both the appellee, Ramsey, and the witness, Se-arcy Ferguson, testified that this approach was a recognized and acceptable method of ascertaining market value.
It has been held that the capitalization of income approach is an acceptable method of determining market value and testimony of this type is admissible.
City
*477
of Dallas v. Shackelford,
After a study of the record аs a whole, we have concluded that even if the testimony was inadmissible, the error, if any, was not such that it would be reasonably calculated to cause the rendition of an improper judgment. Rule 434;
State v. Parrish,
Other points briefed by appеllant have been examined and found to be without merit and are overruled.
Finding no reversible error, the judgment of the trial court is affirmed.
Notes
. “SPECIAL ISSUE NO. 1: From a preponderance of the evidence, what do you find was the market value per square foot of the Defendant’s 35,152.92 square feet of land covered by the easement involved herein condemned by SOUTHWESTERN BELL TELEPHONE COMPANY, immediately before the acquisition of said easement by SOUTHWESTERN BELL TELEPHONE COMPANY on the 16th day of April, 1971?
“Answer in Dollars and Cents per square foot.
“ANSWER: $.06 per square foot.
“SPECIAL ISSUE NO. 2: From a preponderance of the evidence, what do you find was the market value per square foot of Defendant’s 35,152.92 squаre feet of land, taken by the easement involved herein, immediately after the taking of said easement by SOUTHWESTERN BELL TELEPHONE COMPANY on the 16th day of April, 1971?
“Answer in Dollars and Cents per square foot.
“ANSWER: $.04 per square foot.
“SPECIAL ISSUE NO. 3: From a preponderance of the evidence, what do you find was the market value per square foot of the adjoining 843,669 square feet of land owned by Defendant and lying 240 feet deep adjacent to the easement taken by SOUTHWESTERN BELL TELEPHONE COMPANY herein on April 16, 1971?
“Answer in Dollars and Cents per square foot.
“ANSWER: $.06 per square foot.
“SPECIAL ISSUE NO. 4: From a preponderance of the evidence, what do you find was the market value per square foot of the adjoining 843,669 square feet of land owned by Defendant adjacent to the easement taken by SOUTHWESTERN BELL TELEPHONE COMPANY and 240 feet deep on April 16, 1971?
“Answer in Dollars and Cents per square foot.
“ANSWER: $.04 per square foot.”
. All rules hereinafter referred to are to the Texas Rules of Civil Procedure.