*1 ux., Petitioners, et SPINDOR Joe COMPANY,
LO-VACA GATHERING
Respondent. B-4938.
No.
Supreme Court of Texas. 1, 1975.
Oct.
Rehearing Denied Nov. Allen, Coan,
Coan & Richard D. Stephen- ville, petitioners. McMillan, Stephenville,
C. 0. A. Joe Cohn, Jr., and Jerry F. Dorsey, Corpus Christi, respondent.
GREENHILL, Chief Justice.
lake. Subsequent
across the
heavy rains
built-up
spread
the
out
road and
washed
Needing
right-of-way, Lo-Vaca
pipeline
a
throughout the lake
During
bottom.
dirt
Gathering Company,
power
under its
of em-
testimony,
his counsel
Mr.
intro-
domain,
strip
took a 13.5 acre
across
inent
pictures
into evidence
of the lake
duced
Spindor and wife. The
land of Joe
the
eight
taken some
that were
months after
$2,700
strip
awarded
for
were
the
Spindors
taking.
the
of
Counsel
date
for Lo-Vaca
$7,244.80
damages
and
for
to their
taken
objected
pictures
the
did not reflect
land, herein called the
adjacent
remainder.
the land on
the
of
condition
of
pipeline
the
laying
used for
was
A road
judge
pic-
The trial
admitted the
Spindors,
lake of the
and
across a
built
tures.
problem.
the
The trial court
therein lies
and
photographic
certain
testimo-
admitted
testimony,
Then
continued his
relating
evidence discussed below
to
nial
presumably
photo-
with reference
to
remainder,
portion
the
the
damages to a
of
that during
nego-
He testified
the
graphs.
Appeals
The
Civil
reversed
lake.
Court
with Lo-Vaca before the
tiations
he
the
judgment of
trial court and ordered
the
company
out to the
that such a
pointed
to
as
the
the
new trial
to
a
objec-
No
occur.1
further
washout
We
that has do with that affects it with dirt but is reversible error if he prospective the value of the land of the as to costs after the testifies lake has actu it or buyers or tends to make more less ally been filled dirt. Even after the a We present valuable to owner. can fact, give could only Turner an estimate of that give evidence about and type on the equipment the cost based can of val- way you determine diminution probable of days needed and number having somebody remainder is ue or [sic] would take. such work testify restoring to what the cost of it original state back to its would be. holdWe that if the damages actu Spindor resulting Neither Turner nor that ally testified to the remainder tract from in building activities Lo-Vaca activities the condemnor’s are of a nature or negligent dirt road were unlawful. The that could have been foreseen theory on the in at- case was tried that determined and condemnee condemnation, necessary, do what was Lo- tempting to then evidence of dam clearly ages Vaca caused diminution the fair mar- is relevant to a determination Emphasis Texas Vernon’s Civil Statutes Annotated. added here. 66 land; market value (1893), the fair and 381 damages, present stated all
therefore,
evidence is
prospective,
natural,
such
admissible
are the
neces-
City
proceeding.
of Pearland
sary
improve-
condemnation
or reasonable incident of the
Alexander,
(Tex.1972);
compensation
v.
483 S.W.2d
ment constitute
which
Pieratt,
23,
requires
Grange
La
v.
142 Tex.
our
City of
Constitution
be made in
Brewer,
(1943);
We
141 advance.
concluded in the
175 S.W.2d
State
latter case
(1943).
severance
The testimo-
are those which
Tex.
naturally
necessarily
or
flow
resulting
shows that the
from
ny of Mr.
op-
damages actually were foreseen and dis-
improvement;
eration of
and that other
prior
Lo-Vaca
to the condemna-
cussed w.ith
caused to the
balance of the tract
Mr. Turner’s
is relevant to
tion.
may be known with
reasonable cer-
of the remainder a determination
be included.
*4
tainty would
We reaffirmed
therefore,
and,
admissible
the condemna-
Carpenter,
604,
v.
in
126 Tex.
State
89
proceeding.
tion
(1936),
194
that
part
where a
of a
only reasonably
damage
Since
been taken
public
of land has
for a
tract
here,
remainder is at issue
its deter-
to the
use, damages to the remainder tract are to
way
by
no
is in
affected
mination
by ascertaining the
be determined
differ-
City
in Alexander v.
decision
San
Court’s
market
immediately
its
value
ence between
Antonio,
(Tex.1971),
797
which
468 S.W.2d
appropriation,
and after
before
pre-condemnation trespass
dam-
deals
willing-seller willing-buyer
The
test of mar-
Likewise,
to the remainder.
Texas
age
applied
value is to be
ket
and those factors
v. Campbell,
Co.
161 Tex.
Electric Service
which
are to be considered
would reason-
(1960),
77,
urged by
Lo-
336 S.W.2d
weight
in
ably
given
negotiations
be
be-
Vaca,
persuasive
damage
not
because the
is
a buyer. City
a seller and
tween
Austin
case
in that
resulted from uncon-
incurred
Cannizzo,
324,
153 Tex.
v.
G7 Henderson, lake, supra. This was to the fact will that now be admissible Pearland by proof here the evidence to the landowner’s shown as the answer sought to be of his on the necessity road value land date of establishing the dirt the market little value for his lake be- allowed in construction of the the lake across of foreseen results of construction. cause by pipeline; the lake that damages to neighbor-con- do we do about the What was discussed with Lo- therefrom result who have may down demnee negotiations. pre-taking Vaca to trial after case come lake is evidence under review should post-taking of dirt but before construction crew full under our established inadmissible be ruled the neighbor reached and his lake? have precedents. allowed prove Will he be what is “fore- the sense of writing by seeable” affirm the reversal and remand I would majority, or will we restrict him to the Appeals. the Court Civil ordered rule and his Carpenter market value loss on taking? REAVLEY, (dissenting). Justice dealing If we were here with suits for holds evidence of actual The Court compensation of the landowner for dam- (including repair) cost of to the during construction, ages suffered we land, the owner’s which occurs remainder present well rewrite number of our might construction, is during condemnor’s admissi- *5 of actual damage during rules. Evidence trial to prove the condemnation ble construction, either caused negligent or recoverable That landowner’s conduct, might non-negligent be made ad- the landowner to the dif- not confine will suits. The present in those case is missible market value immediately ference case, however, a condemnation and under taking by after the con- before the rule that the statute and fixes the land- What demnor. change in market owner’s buyers Spindor’s lake and prospective agree value on date must picture; was one land on decision of the Ap- with the Court of Civil damage suffered some nine peals. a different later is one. months in this case seems to be fair The result WALKER, J., joins in this dissent. parties. My concern is to these enough dealing of the rule without change
with our precedent problems
with the intend cases. If we to allow of future
trial recover all
the landowner of the condemnor’s tak- suffers because
he right up to the date ing and construction — FIRST NATIONAL BANK OF GRAND case, we of the condemnation the trial PRAIRIE, Texas, Petitioner, justi- a rule should be say so. Such should statutes, Art. particularly against fied LIFE LONE STAR INSURANCE that we would then to me It seems COMPANY, Respondent. one rule of for the prescribing rule for the different No. B-5389. commissioners of the commissioners’ appeal after trial Supreme Court of Texas. award. 15, 1975. Oct. the con- rule will work for Surely our 12,1975. Rehearing Denied Nov. way. If con- when events demnor completed by the time of the struction has been no rain or harm if there
trial and