*1 Smith, Harlingen, Kennedy Cunningham Rabel, & Edinburg, plaintiff in error. Glasscock, Rogers Bryce Ferguson, Bader, D.
Brown W. & Wilkins, Mission, Strickland, for defend- Kelley, all of Sewers & in error. ants Presiding Judge opinion of HARVEY delivered the
Mr. Appeals, A. Section the Commission opinion by After filed in case due consideration (58 168), Appeals (2d) the Court of Civil W. said is S. plaintiff court, approved. The error contends that said passing sufficiency plaintiff’s petition under the on the error, interposed Gill, demurrer defendants surety bond, on his official have taken considera- should into separate tion fact averments contained in the filed answer surety. the codefendants of and his The contention Gill overruled. surety any Gill and his no bound wise the fact averments contained in the of their codefend- answer judgment reversing ants. The Appeals, Court of Civil judgment remanding trial cause, court’s affirmed. Opinion adopted Supreme February Court 1936. Carpenter
The State of Texas v. R. B. et al. January 8, No. 6460. Decided 1936. Rehearing February 19, overruled 1936. (89 W., Series, 194, 979.) 2d *3 Waco, Eason, for L. both of B. McNamara W. John (cid:127)plaintiff in error. taken, improve- land not nor
Neither the of the determining thereon, considered in ments situated should be taken. The owners were entitled market value of the land strip purposes. taken for road for the of land recover Jackson, W., Doom, W., 255; v. 23 v. 278 Parker Co. S. State S. 924; W., 318; Willacy City Hasse, of Mart v. 281 v. S. Central County, (2d) 14 102. S. W. charge general special
Where case is submitted on issues 295; given. Collins, (2d) should not be El Paso v. 23 W. S. Watson, Benefit, 902; (2d) Buro v. Home 28 v. S. W. Watson (2d) 1100; Brown, W., 28 S. W. 288. Andrews v. 283 S.
607 Boynton Sleeper, Bryan, & Maxwell, Stansell Bryan & Waco, in error. defendants Kendall, for all of determining jury properly instructed The court in this actually taken land State market value the market value said value “is proceeding that said by itself right way purposes when considered taken for tract, of entire alone, value as a market but is its County, 94 v. Johnson part.” Caruthers it forms a 911; Fike, W., Texas 224 912; W., City Antonio v. S. of San S. Pipe Ry. 633; Illinois, M. Co. W., I. & Higgs, Line Co. v. S. Humiston, E., 880. 69 N. v. excluding com- charge the court paragraph
The charge, was a munity not a but was benefits con- injuries to be and benefits reference to the instruction with Casey, v. jury. & N. R. R. Co. International G. sidered Daily, 291 Lighting 669; (2d) & Power Co. Houston S. W. Issues, 317; Special W., Speer 114. on Section Judge of the Commis- delivered GERMAN Mr. A. Appeals, Section sion brought by proceeding the State condemnation
This was a Carpenter against plaintiff, R. B. Texas, referred herein sought others, The referred to as defendants. State herein purposes highway across of land for 8.03 acres to condemn In the trial by Carpenter and wife. tract of 240 acres owned defendants judgment rendered favor of court a right way, the 8.03 acres taken as the value of $803.00 and for *4 the of $3,477.00 in the value of balance as judgment by the Court of Civil affirmed the farm. This was (2d) questions Appeals. 219. for determination The S. W. submitting questions pertain charges of the court in here to compensation. By the Special jury Issue No. 1 the was asked to determine They 8.03 answered reasonable market value of the acres. jury in- question In connection with this the was $803.00. structed as follows: 1, Special you instructed
“In connection No. with Issue that right within market value of the acres of land 8-3/100 way, for of is not the market value of land taken said right alone, way purposes of but is when considered itself its part market value it forms as a of the entire tract of which part.” a inquired jury
The court or not of the to ascertain whether the market of reduced value the remainder of the farm had been 8.03 The acres taken. the condemnation of reason of Special Issue
jury The submitted court also answered “Yes.” 3No. as follows: cents, find, amount, you from a do
“What dollars and evidence, R. B. preponderance remainder of of Carpenter con- value farm will be reduced market land, any?” demnation of the acres of 8-3/100 judgment question $3,477.00, To this answered rendered in favor of the for the defendant $803.00 $3,477.00. question
The of the first concerns the action decision giving court in with the instruction set out above connection Special Perhaps strip Issue 1. of No. if the value of the taken had been the it would have been issue submitted question part a submit the of considered as its However, the whole tract. it to us obvious that sems strip part the value of entire this was ascertained “as a of the tract of part,” necessarily which it forms a included to part damages remaining portion. some extent a submitting In tract, damages issue the remainder consideration is taken of caused the severance part taken consequential from the whole tract as well as of damages to the remainder of the farm. From this it neces sarily follows, us, part it seems to valued if the taken be part aas part, the entire it tract of which forms there opportunity damages. would be double The writer Jurisprudence, text in 16 pages Texas 988 and seems recognized have this. It is there stated: part special “When the condemned constitut- ing part tract, of the whole im- is immaterial —unless it be portant by special reason a set-off for benefits —whether we say that the compensation part owner is con- entitled to for the higher value, demned on the basis or that the award condemned, should be for the value of the as severed plus depreciation by reason latter for- of the severance. The correct; mula technically seems that it more and it submitted applied give must be due accuracy required in where order to statutory effect to the residue rule that the diminution by special be offset benefits.” *5 879, W., Jeffery Wis., 1, The Ry. Co., case of v. 119 N. 138 point. Supreme directly the Wisconsin, almost in Court In that case the court said: plaintiff
“Now market the was entitled recover the fair to
609 land strip taken, the to the other and the value of taking; but, they the first found in the occasioned considering part it strip taken as a value the question the business, in premises used plaintiff’s and as his entire tract the taken, only strip the found, necessarily not the value they remaining the premises. The damage value but some the considering the balance of strip, in connection with its use business, necessarily the plaintiff’s involved in the land as used plant.” damage to remainder of the idea of “Compen- compensation just is this: doctrine of The true taken, property merely for but sation is awarded necessarily follows that taking property.” It of the damage whole, and to part relation valued in its taken is part of the the severance the remainder because of is allowed to damages. taken, duplication of is a there Texas, 802, Trogdon, 31 County 88 v.
In case of Travis W., 358, court this said: 1863, Texas, 588, Ferris, this Railway decided in “In cited, provision then above court held that constitutional (1) intrinsic force, required payment of the in to owner might taken, to value without reference benefits he improvement, not be and such claim could derive from benefits; (2) any offset and occasioned such damages, estimating property, in which the remainder of the legitimate sub- the benefits to the remainder of the tract were jects of consideration. provision,
“After this construction of said constitutional was, indicated, change incorporated as above into without 1866, 1868, 1876; in the Du- Constitutions of and case Texas, laney County, approved court v. Nolan construction, applied provision the same the Con- quoted.” stitution now above force as recognized necessary
Since this decision it has become practically cases, arriving just compensation all at cases, part which an owner is entitled condemnation where a taken, of a tract to take into ele- consideration the two ments, wit, taken, the fair market value of the or its intrinsic value in there case is no market the dam- ages occasioned to the remainder of the tract reason of taking and the improvement construction of the it is appropriated. In all cases on where the element of offset account of benefits necessary is involved it is ascertain portion actually compensation taken so that paid order, therefor in money. therefore, possi- In to avoid the *6 damages part taken
bility the value should be of double considering alone, portion by and not as a ascertained course, damages tract; unless, larger the issue tract is not the remainder of the involved. is found in the decisions of courts of civil
Great confusion submitting touching appeals method of in- the issues and structing concerning juries the ascertainment of the other ele- designated damages compensation, re- ment of as the to the sought to mainder of the tract. The trial court in this case having jury amount reach the correct result in the ascertain the by that the reduced in market value remainder of the farm was the in- condemnation of the 8.03 acres. There also issues were finding extent, any, tended to elicit a market as to what way special value of the farm had been increased benefits reason of the condemnation and the construction damages the road. In connection the re- with the issue of they jury mainder of that the land court instructed the matters, could take con- into consideration such as numerous culverts, fences, struction of incon- the cost of construction of arising farm, venience from division etc. jury
There were also which the instructions as to matters might or not consider connection with the issue of whether special the farm had been enhanced in bene reason fits. *of Several the matters mentioned in the instructions damages, pleaded special the court had been items of and we opinion single are of that was error for the court to out these might they matters and instruct take them into clearly ap consideration. The reason for this conclusion will pear from the discussion which follows. are of rule ascertain
We ing measure of to the remainder of a tract of part only public directly where a agous anal has been taken for use is applicable to the rule there has been which is permanent injury of a to land reason of the construction public improvement, improvement by or the construction of an private By agency exercising right domain. of eminent damages ascertaining this rule are to be determined difference between the market remainder of the value of taking immediately tract before the and the market value of immediately appropriation, remainder of the tak tract after the ing improvement, into consideration the nature of the course, use to put. which the this rule land taken tois Of damages property relates to the ascertainment of the special which may possibly be items There itself. accurately in the difference between reflected may not be after, everything market value but and the before market value having itself, due the land value of the market affects accurately injuries, may probable regard future past *7 value, ascertaining all the the difference when reflected legitimate testimony properly to for con submitted is sideration. great things many it which enumerate the decisions While assessing the dam- may into consideration be taken
is said ages they referred to as ele- and are sometimes damages, yet on close consideration ments of they it will be seen analysis merely evidentiary in the last are matters which arriving at the ultimate issue of the to be considered Boyer In & Lucas v. St. in market value. the case difference W., 441, Louis, Ry. Co., Texas, 107, which F. & T. 97 76 S. S. damages property by a suit for reason of the construc- along operation adjacent tion and of a railroad street plaintiffs’ property, the court said: charge
“The of the trial court contained no error of which plaintiffs complain. have cause to It seems to be one of contentions, that, property their was rendered less useful particular they put it, they for the uses which had would be entitled to recover as for a diminution in the value of although property, may such its market value have increased. estimating This we do In this not understand to be the law. damage, operation item of the effect of the construction and upon property the road the market value of the the measure. Fuller, Texas, 467; Georgia Railway Streyer Co. v. 63 v. &S. Ry. Co., Ga., course, particular purposes F. 90 56. Of property which is devoted as well as it others adapted, may be shown in evidence to enable the court jury to determine market its value and the effect con of the operation it; upon only struction and of the railroad but when damage property done to the value of the is under consid eration, that must measured In Allo be its market value. way City (88 Tenn., Rep., 123), Nashville 13 W. quoted the true rule is thus from Lewis on Eminent Domain: “ ‘The property any market value of includes value for its may If, put. surroundings, use to which it be reason of its advantages, or its improvements, natural or or its artificial its character, intrinsic peculiarly adapted particular it is to some use, all adaptability may up circumstances which make this shown, be adaptation may and the fact of taken into be compensation. estimating Some consideration may proved; particular be for' a use its value cases hold is, in view of its market proper inquiry what is
but the applied, of all the uses to which may any use to which * * * property and all its adapted? The condtion it is availability particu- any surroundings may and its be shown uses, adaptation peculiar for certain this use. If it lar may adaptation shown, peculiar adds to its if such But, all it. to the benefit of value the owner is entitled shown, question at the facts and circumstances have been is, last what is it in the market?’ worth abutting occupied by property rail- on streets
“Owners of damage of the value roads besides the diminution suffer Fort property court. Daniel v. their as has been held Texas, present ques- Railway Co., and R. 327. The Worth G. tion to the value relates to the ascertainment property itself.” *8 W., 533, County, 212 In the case of Currie v. Glasscock language: following Appeals the the Court Civil used finding of in its “We are of the that the court erred proof offered to fact and had been conclusion of law that no depreciation road necessitated show in The fact that the value. watering fencing additional of an additional and establishment place in former usefulness order to restore the land to its by purpose value for the owner the it was used which fencing, depreciated evidence of a value. The cost of additional establishing watering places, nature and other items of like by laying a meas- necessitated the of the road do not constitute ure age, dam- not items of and are recoverable as distinct admissible, but and is entitled evidence of this nature is determining proper probative be accorded whether its force in damaged. the tract of mat- land as a whole These are has been jury may ters which or court and should considered the trying the In facil- case. like manner increased and better road damage. offsetting ities be taken into consideration as such Sedg. 1163, In 3 on Dam. sec. it is said: “ damages ‘The measure of confounded with must not be damage, the for the elements of evidence of which is admitted ** * purpose enabling apply The meas- the rule. damages proceedings, ure of in one of in stated condemnation general forms, depreciation its most the value of is in property; injury to it. for this is the the amount of same as market, The value there is easily most measured seen, one. we Consequently,, with which as. we. have rule commonly the difference between the market value most meet is improve- property as affected and as unaffected ment, improvement, and as it will after the or before improvement general rule, any completed. As a under head law, damages where the measure of is determined value, any difference in it cannot be a matter of market conse- quence giving up, of what elements this is made and evidence injury quite market and after the value before would be * * * Land, however, many very sufficient. in cases a inde- value, farming land, especially terminate market or wild greater perhaps as is involved in number of condemnation proceedings. Hence, practice it has become the to take evi- dence, only directly value, not every the market but as to it, element which enters into and tends to diminish it.” County Jackson, In the App., case of Parker Texas Civ. W., 925, Appeals, referring 23 S. the Court of after Civil given by court, certain instructions the trial were de- erroneous, following language, clared to be used the and also quoted approval Sedgwick with the statement from on Dam- ages set out above: cases,
“The measure of the class of as we it, First, understand the value of the land taken for the is— road, first; appropriated second ond, which had been for the sec- any, caused to the remainder change appellee by the land of the class of road. arriving In damage, parties at this second item of would right have the everything to introduce evidence of that would tend to affect pro- the value the estimation of a posed purchaser, or that would or tend make more less *9 present owner, valuable to shape the such as the in which the left; fencing, tract any, will be the increased amount of if that required; will expenditures necessary the increased made to provide water; facilities, any, provided the added if for travel introduced, to the owner of the land. But this evidence is not constituting damages, as the of measure but as elements to jury measure, which, enable the to arrive at the correct as stated, tract, any, above is the lessened of caused the elements, these different are into considera- all taken tion.” County,
To like Kennedy effect the cases of Travis 61 App., 547, W., 844; Texas County Civ. v. Mc- Wise Clain, W., 802; Ry. Wyrick, 100 S. & Wichita Falls Co. v. W. W., 730; City Vitek, W., 147 S. of Rosebud v. 210 S. 728. above, following quotation out uses
Sedgwick, set the language: significant species proof in condemnation common of “The most two Value; 2d, ele- 1st, and the elements of
proceedings the are — everything Damages.' the first head is admitted Under ments of the bearing property; under has on the value which part second, everything and makes enters into damage value are damage These elements inflicted. specific they damages, as nor are allowed neither measure of light damage. go on They jury to throw items of general question depreciation. proceeds say: He then to general thing, therefore,
“As where the rule laid down value, tending depreciation testimony to in market show selling property unaffected value of the as affected and as improvement proof or railroad other is the method to.” resorted is, therefore, proof
The to matter mar reduced to one of as value, depreciation ket value to in market rather than questions may abstract as to or not be considered what jury assessing damages. in from the value of Aside taken, actually the re the true measure of mainder in “for this is the same being true, injury the amount of the it.” it is obvious This submitting ascertaining depre purpose that issues for the jury proper ciation in instruct market value it is not they may into items or elements take consideration certain damages, they may into or to instruct them that not take course, consideration certain matters. Of may instructions attempting necessary purpose become at times inadvertently qualify testimony to withdraw or which has been purpose. admitted or admitted a limited Confusion cases, many often arisen from the fact the issue sub damages such, jury mitted to the was the issue charges. many on instances cases were submitted submitted, If an issue of as such to the were might necessary many instruct become instances to into as to taken proper what were and elements were consideration, submitting simple of the differ but in issue after, ence us in the market value before and it sems from that same instructions should be submitted without *10 court, It other than value. definition of market formal appears matter us that in the whole most not all cases may jury con may considered what be what the trial court the admis be best determined sidered will testimony rather than instructions to and exclusion of sion upon jury. way possibility the weight In that of instructions evidence, possibility and also the of the al of the items, lowing damages special upon the rather than basis determining question the ultimate of the difference in market value, will be avoided. touching proof
The matters of value as well as varied so and multitudinous rules can be formulated. The decisions of this court and of courts appeals quite accurately disposed civil have most cases questions presented properly subject proof as to matters each individual case. discussion and cited in See authorities 311, 339, Sections 312 and 16 Tex. Do- Jur. under “Eminent main.”
Generally, may touching said it is matter of the value and admit evidence upon suitability all such adaptability, matters as surround ings, after, conditions before and and all circumstances which tend to present increase or diminish the market value. Evi relating remote, dence should speculative be excluded conjectural uses, injuries, as well as which are not reflected in present property. market value of the See Worsham Galveston, Co., Ry. H. & Appeals W. 3 Wilson’s Court of Civil Cases, p. 496, Sec. 425. Streets,
Elliott 1, on Roads and Section vol. makes the following helpful upon question comment of evidence as to market value: acquainted
“Witnesses with the market value the land opinion seized state their of its value. It is essential that acquaintance some with the value of the land in the market shown, knowledge should be but it is not material how the weight great obtained. The of the witness’s will in a depend upon acquaintance measure which he is shown to possess subject values, gives with the and the facts which he constituting opinion. the foundation of It his seems to us rule, although sharp better there is a conflict in the authori- ties, competent that it is not to ask a witness how much party sustained, put since this would be to the witness place jury. is, however, according weight in the It authority, competent witness, qualified testify to ask a upon subject, way opened value of the land before the
616 way is constructed. This after the its value will be and what simply province jury, asks because the does not invade and to dam- as values not as the of the witness to for ages. any perceive other rule than that It difficult to how is principle. minutely No matter how maintained on stated can be surroundings described, jury, may a unless lands and their knowledge controversy, possessing can peculiar of the matter not, judgment persons acquainted values, the of with without justly injury or to land- determine benefit which accrues opening highway of owner of a or the construction a object place jury ditch. The of evidence is before a all legal just con- facts essential to a decision of the merits of the troversy, rights justly so that of the contestants determined, object testimony as and is defeated unless highway the value of the land and without the allowed with guide to be ver- introduced. Without some of this character product conjecture dict must be the of rather than a con- proved clusion from facts.” mentioned,
In addition to court in the instructions language structed the utes, of Article Revised Stat confusing, unnecessary, 1925. This amounted to and general charge. provisions are Plainly, a 3265 of Article guidance commissioners, primarily intended for the of who court, supervision not under the of a and are not intended trying furnish case a court a method a condemnation before recognition jury. statutory and Such does constitute article arriving just compensation. at As said rules for provision benefits, and article contains a with reference as question usually condemna benefits is involved most question cases, necessary briefly tion it becomes discuss submitting of benefits and the most suitable method question jury. to a
Section 4 of said Article 3265 is as follows: estimating injuries benefits, provided "In either the or preceding article, injuries in the or benefits which gen- community owner sustains or with receives common erally peculiar his and which are connected with to him and ownership, enjoyment, particular parcel use and of making shall their not be considered the commissioners in estimate.” language lan reproduction
This is almost a verbatim guage Fuller, Gulf, Ry. found in the case of C. & F. Co. v. Texas, 467, applicable a case and course in the trial of proceeding commissioners. inas jury, as well and a court trial court in concluded that a reasons, have we For various cannot eliminate all evi of evidence exclusion admission touching injuries ques “community” benefits dence above, As indicated in value. of value tions adducing to market value is evidence as method the correct *12 giving qualification, opinion their witnesses, after suitable by and after the tak residue before the market value toas undertaking specific testify items ing, than rather Hall, damage. Gainesville, Ry. H. & Co. v. injury W. and See W., A., 298, 175, 176, 22 Texas, 14 9 L. R. Am. St. depre Rep., 42. If the answers that there been a witness taking, in the market after the or an enhancement ciation proper question event it him as to basis of in either opinion and the he has into consideration in his matters .taken arriving among opinon. testify at If he that his should arriving things he has considered at of market his injuries, “community” value were benefits or but there that legitimate things other were of a nature influenced his altogether. opinion, this should invalidate his evidence For reason, others, among it occurs to the matter us can altogether not be controlled in the admission and exclusion of follows, therefore, It evidence. that without some limitation or charge, finding instruction in the of market value of the land taking necessarily after would value contributed include by community thereto special benefits as well as benefits. It is of course settled that enhancement in market value of the by residue of “special legiti the land reason of benefits” is a damages thereto, mate offset to but not to the value of the actually taken. “special The statute has not defined benefits.” It has undertaken community nega to define benefits and tively authorizes all other benefits to be into taken account. A finding as to market benefits, value would include such and should do include, however, so. It should not value because of community benefits and for this reason we have concluded that provision charge should excluding be made such bene fits. We think this can appropriately be more by proper done special issues rather than an instruction of the court. As this case is representative to some extent one, and as it must reversed trial, and remanded sug- for another we are gesting what occurs to is a us submitting method of same; on assumption, course, that it bewill submitted on special intimating issues. Without this method should be followed in all cases, like we practical believe it will furnish a suggest cases. in most similar We
method submission following special issues:
Question preponderance of the evidence what 1. From a No. strip market value of the con- you do find was purposes highway at the time was the State demned condemned, land? considered as severed cents. in dollars and
Answer Question preponderance of the evidence what No. 2. From a tract of the market value of defendants’ you find do was condemned, immediately strip before of land exclusive of highway strip purposes? taken for in dollars and cents. Answer Excluding value,
Question any, increase in if No. 3. injuries any, re- reason of benefits or decrease generally community defendants common with the ceived ownership, peculiar to them and connected their and not with enjoyment particular tract of land across which use condemned, taking strip of land has been into consid- strip the uses to which the condemned is to be sub- eration jected, *13 you preponderance what do find from a of the evidence was the market of the remainder defendants’ tract of value of taking immediately strip land highway purposes? after the condemned for Answer in dollars and cents.
You are instructed that the term “market is the value” price bring property which the would when it is offered by bought desires, obliged sell, sale one who but is not to and is by necessity one buying who is under no of it.
Judgment any will be in favor in and all of defendants Question reply events the amount found in to No. depreciation any, by will also jury in found be if Questions in answer No. and No. 3. judgments Appeals
The and of the trial the Court of Civil hereby court are for an- set aside and the cause is remanded other trial.
Opinion adopted by Supreme January 8, 1936. Court
ON FOR REHEARING. MOTION rehearing In motion for defendant in error our attention is called to the fact that inadvertent omission there was an certain in The definition words the definition market value. should have been as follows: price
You are instructed is the that the term “market value” by one desires bring offered for sale who property will bought sell, de obliged one who and is sell but is necessity buying. no buy, under but is sires to in in- the fact that this called to is further attention Our improvements upon the 8.03 acres of certain there were stance re- necessary which, stated, for the owner to it is land doing expenses are called in so. We that he incurred move and upon recovery of this item as say allowed a that he should be damages. significant to note that separate It is a item trial the former appears taken of on to have been care item deprecia- being connection with the into taken consideration special cover- There was no issue tion of the value of the land. charging they ing court, that The trial after this item. removing might cost of take into consideration “the reasonable right way,” reestablishing cau- improvements and tiously added, from the you considered “but matters can these affecting land, they it.” if do affect the market value upon improvements It situated rule portion of land taken are to be considered as realty. separate They ordinarily from have no market value improvements the land. taken or Therefore when such are finding destroyed their value can reflected as to taken, value of the of their admissi- and evidence value is alternative, however, purpose. ble for As an im- provements upon portion of land taken which are situated enjoyment essential to the use and of the remainder of reconstruction, replacement, by ifor their removal or necessary value order obviate the residue, removal, the cost of reconstruction and/or and/or replacement may inquiry be a in connection with issue of diminished market of the remainder. See State Lowrie, (2d) 56 S. W. 676. *14 general fences, reference
The better rule with which improvements, applied also be certain other is in 2 stated language: Domain, Lewis on in this Eminent Sec.
“Where, taking tract, fencing by part a will of a additional necessary enjoy- use be rendered in order to the and reasonable future, remainder, probably ment of in the as it will be used constructing and the fence cast burden of such additional is constructing upon land, and of owner of the then burden maintaining fence, depreciates the of such in as it so far estimating land, proper is in a element to be considered land, damages. question land. It a as ... is of land, additional probable future use If, in of view necessary, of or commissioners fencing which the be will fence if he must construct judge, and the owner are depreciated proportion expense it, land is then the fencing. Nothing maintaining constructing be can of- fence, The allowance should be for as fence. allowed consequence of the burden thus cast depreciation the land in of upon it.” pages in Annotation at 455-458 of
See cases cited also L. R. A. attempting opinion must be construed to fur
This not as rule similar nish an inflexible to be followed all cases. The general purpose emphasize been to main of this discussion has necessity obviating, nearly possible, as as the submission damages specific cases, items of in condemnation and to avoid instructions trial courts as to matters elaborate arriving may may or not be taken into consideration in at the question depreciation ultimate in the market value of the part remainder of the tract of land when a has been taken. just compensation Fair and to the owner the land con damages sought demned and for to the remainder end be attained. We realize that this result cannot be reached in every following case here rules outlined. If the exercise aof sound discretion the trial court find should just compensation, standpoint from the of the condemnor owner, as well directing as the cannot be arrived without at specific damages, attention to items of or either instructions special issues, erroneous, necessarily such action need not long so recovery as a emphasis double is avoided undue placed upon specific damages injury. some item of or again We have carefully question considered the proper submitting method of the issue of value of the tract taken, are still of the conclusion that when sought because of in the market value of the tract, remainder of the submitting method question is as original opinion. true, stated in our If it argued by case, counsel in this that the 8.03 of land taken acres was, considered farm, per worth $100.00 acre, it necessarily follows that the value the farm as whole included the sum reason of this 8.03 acres $803.00 being included If, therein. after the land from the was severed tract, the 8.03 acres worth, $100.00, as severed it follow, must us, seems to proof that when of this was made *15 the value necessarily conclude fact, would by reason $703.00 diminished had been farm balance remainder of the value If the strip alone. the severance no things, owner of other by reason increased has been damages to the settled it is well complain, right because allowed as benefits offset remainder valué finding the intrinsic time, awith At the same law. compensation just right taken, the owner’s regardless of bene protected, guaranteed by the Constitution controlling appears to be analysis, This, in the last fits. part taken submitting question as to reason rule large majority of states separate In a issue. to determine ascertaining just compensation is adopted for aas as a whole farm depreciation, any, in the value improve and construction result of the condemnation ments. over- rehearing in error by defendants
The motion for ruled. 19, 1936. February Opinion adopted by Supreme Court T. v. J. C. Whicker (Lubbock
Nella et al. Evans Bank) .
National January 29, No. Decided 1936. 6562. Rehearing February 19, overruled S. 1936. (90 554.) W., Series, 2d