*1
Tex.Civ.App.,
Co.,
Oil
Coal &
Martin,
e.;
ref.,
v.
error
n. r.
Sneed
Since
judgment was amendment, sub appellant to
mit file begun,
mitted before by settled had been matter ground that the also error. summary judgment, was Tex.Civ.App., 349 Wilson, S.W. v.
Whitaker ref.,
2d n. r. e. erroneous case tried on
Since consider-
interpretation contract and of the absolving the contract provision
ing be- tests were while liability
the owner of damage results or if the loss conducted of skill negligence or want
from either contractor, reason diligence equipment, the contractor’s failure reversing re- will
justice be served trial, new case for the entire manding con- of action on the than the cause
rather
tract alone. re- Trial Court
The new for a is remanded and the cause
versed
trial. Appellants, al., et STATE al., CHURCH et BAPTIST MAIN
SOUTH Appellees.
No. 13885. Appeals of Texas.
Houston. 11, 1962.
Oct.
Rehearing Denied Nov. *2 F. Resweber, County Atty., Charles Joe County
Mitchell, Landry, Asst. Edward J. Attys., Houston, appellants. for Searls, C. Vinson, Elkins, M. Weems & Chiles, Mc- Kendall, D. F. Russell Jarrel Daniel, Houston, appellees. for WERLEIN, Justice. by the State brought
This suit appellants, County, and Harris Baptist Main South Church trustees, parties involved and other highway pur- appeal, to condemn for poses belonging three tracts of land Houston, first tract Church in Texas. sought of 38 consists be condemned tract, square 13; Block second feet in 12; and the third feet in Block tract, 20,409 square feet in Block all City Bute Addition in James Houston, County, To Harris Texas. $82,045.00 award com- court, appel- appointed missioners court, objections lees filed in the by jury awarded a a $211,348.00, sum in the judgment appellants per- duly appeal. fected their actually The three tracts of land taken herein will be referred to as Tract Tract 2 and Tract 3. The allowed Tract 1 $114.00 property remainder Church 13; Block entirely for Tract taken, $35,152.50; 3, $80,183.75 for Tract $31,593.00 damages property 7; the Church in Block $56,804.75 sum of for de- crease in the intrinsic value of Tract 4 due Tracts taking of 2 and 3. 4, upon which is situated the Church sanctuary educational building, like separate and isolated non-contiguous to any one the other tracts. map portion brief, showing ques- We here insert a the tracts in Addition, Appendix I to tion. James
EXHIBIT y a portion Map KEXs Addition, James Houston, map. indicated County, Harris The remainder is.shown lines. horizontal hy 200' 1" equals Scale ed, pre- weight and finding great is so Appellants contend ponderance of the evidence as to be mani- jury of to the remainder unjust. only festly tract from sever- contains which Tract was the building look like the front the rear feet near substantially testi- recre- tthe building. This appellees’ is situated land dam- mony also. seeking Clawson Appellees in Witness building. ation tract of ages prin- change severed, rely no that since It is our view Tract was itself the Southwest in the cipally upon fact whatever was made responsible for Freeway, appellants, the condemna- purpose they are not for which passes undertaken, a little question now public may tion the fact *4 building recreation near recreation better of the rear of the the rear of said view They to the exposes they prior view. public building and to now than had its rear been they have the Free taking the of claim that as a thereof and construction result cost way. Allen, as an qualified extent what it will damaged to the of who Witness like to building expert to look as appraiser, make the of the testified rear realtor and and triangle that square the The east the building. front of the value the 38 foot building, and taken, such tak south walls of the recreation was and also testified rear, con- are of the ing just barely nipped little near the corner turn-around off the brick, the is building structed of a whereas tract buff-faced on which the recreation building, located, rear im of said recreation include the and that he did not exposed the provements improvements now more to because of view because the Freeway, what is common- Lloyd is constructed of not at Fadrique, affected all. another. ly pink brick. qualified known as or reddish common appraiser, realtor and also testi Freeway building is the the Between and fied as the taken, to value of 1 Tract andi ample side- road and room for a service testified that he felt that the remainder was- walk, 19. as shown on Plaintiffs’ Exhibit not damaged by the taking of the small from Free- portion The Richmond Avenue the exit of land which was not used! way permits leaving Freeway just the south and which was taken off of rear of the the of Richmond Avenue continuing and on such upon site building' which the educational exit road in a northerly direction across was constructed and which would dam Richmond, thus direct to permitting access age utility. its Finley, use Mr. a real the building Colquitt recreation on Ave- agent appraiser, estate testified that the nue. value of the remainder from which Tract
was same was the before and after wholly We think that the evidence taking. Dust, hazards, noise and traffic fails to or utility show that of the any, Freeway if incident to of the building injuriously recreation has been af they cannot be as considered are common part as a taking fected of the service all buildings to and homes located near road square Freeway. or sidewalk small tract of 38 The cost of beautifying the feet. The walls rear of such building recreation structurally when it is substantial walls brick and no change what nothing sound and has been done to change ever has been made appearance therein the con any way whatever, or mar Freeway, struction of the taking proper does not constitute a element of dam feet. The Furthermore, inserted map ages. shows of Wit exposed rear of such building that the respect Lee and nesses Clawson with to such by people on Colquitt damage to alleged view as the result taking of the perhaps on Streets West merely Main Street consists of conclusions. taking, prior as their vision As stated in Tennessee Gas and Transmis by buildings was obscured Zirjacks, such streets. sion Co. Lee dism., testified that he thought
Witness there error opinion S.W.2d damage to was some the recreation build Norvell: “One claiming damages Justice that such damage would be the land must show the to nature the dam that it to amount would take make age, portions the rear the effect various relationship and the of the same to market value. ample We think there was market to value. A mere conclusion as evidence support findings that market pur is insufficient for this value Tract 4 did not have a market value but pose.” did have an 18, 1959, intrinsic May value on the date of taking. error, It was not there- record, Basing holding our entire on the fore, for the Special court to submit Issues finding is our it view that the Nos. 10 and 11 relating to the intrinsic value by the jury to the remainder of $7500.00 of Tract 4 before and after the tract of Tract was 2 and nor it weight against taken is great so trial court overrule motion preponderance as of the evidence disregard say such findings. We cannot unjust. manifestly King’s re wrong and In that such findings great are so Estate, Tex. weight preponderance evidence as to be manifestly unjust. of facts statement read the haveWe *5 findings that jury’s the that have concluded complain appellants point In their fifth Tract $114.00, that of 1 a value Tract had submitting issues that the trial court erred in taken, reasonable had a of was all which relating compensation for the decrease to Tract $35,152.50, that of market value remain- in value of the market individual market taken, a reasonable had which was which Tracts ders of the tracts of from the and that $80,183.75, of value unity the 1 3 since under and were was taken Tract 3 from which of the tract theory appellees, of com- of use of the issue $31,593.00, of to the extent damaged resulting pensation in value for the decrease The in evidence. support the find taking the and 3 should from of Tracts 2 however, for the $56,804.75 allowed, also specify embrace the decrease value and No of Tract value of the intrinsic loss appellees’ property, and not the whole of of Freeway pur- part taken for of Tract 4 was of land from merely the individual tracts contiguous there- Freeway poses, is the nor 1 3 were severed. which Tracts and 4 separates Tract Street West Main to. ap agree appellees with that We Tract 3 was tak- Block from from pellants’ be considered be Point V cannot 4 separates Tract en, Brandt Street and appellants’ it was not raised in mo cause 13 from in Block tract of land the trial, for and the further rea tion new for the evi- taken, although 1 was Tract objections appellants in their son that connect- a tunnel that there is shows dence did exceptions charge, to the court’s not recreational 4 with the Tract of to the submission the object or Block 13. situated on damages relating remaining to the to issues point as 1 3 in their second of land from which Tracts Appellants tracts submitting Spe ground erred in the that the court severed on de that the were sert inquiring appellees’ property as a to whether of as No. 8 crease in value Issue cial appellees value since been under the a market should have submitted had whole judicially theory. It true that in their pleadings testimony unity of use in their market objec tract did triral and in their such for new that motion admitted exceptions on the other hand contend to the submission Appellees of tions value. 11 in the charge, should not considered Issue No. court’s point Special appellants’ general way pointed not in a appellants raised out because court the agree relating We that the of such issue to the new trial. the submission for motion sufficiently of Tract 4 raised in in value would result decrease point is not view, but, appellees our double damages, trial. It is how as giving for motion .new exception objection is no or ap- stated, there upon the entire record based ever, in the motion for new judicially allegation to admit did pellees that the submission the effect that Tract had a first pleadings treat appellants had elected consent of damages in double issues would result seven of land. tracts tracts as isolated submitted other or that the case should have been under Moreover, been submitted at If case had theory. unity rule, to Tract unity damage then appellants commencement remaining tracts a whole other as consented to the submission of the taken, might after Tracts 2 and were remain- relating issues We find jury. have been considered separate ders of the tracts of land from authority, however, permit no which would which Tracts 1 and 3 were severed. non-unity combination of use rule undisputed evidence We think the unity use rule the facts under belonging shows that the tracts of land of this error, however, case. cannot be appellees constituting property, the Church said to be fundamental error. unity devoted to a of use that objections to level Appellants failed use, entity them united into an so that exceptions to the submission of they should have been as such considered unity of use rule after to Tract 4 under entity purposes of estimation of dam impliedly found that the non- had court ages lands remaining of the Church applicable in the sub unity of use rule as a whole issues, first seven and also mission Rayburn, and 3. Texas Law of Condemna point in to raise such their motion for failed (1st V-E, ed.), tion 160(1), pp. Ch. Sec. They any point new trial. do not have Stanford, County 455-459. In McLennan *6 error, such covering although in their briefs Tex.Civ.App., 208, 350 S.W.2d the court arguments statements and stated: they complain briefs now for the first time separate, “Where but contiguous that it was error submit the first seven integral tracts are parts entity an non-unity theory issues on the ownership under common physi- in such then submit the issue of to Tract cal and relationship functional unity theory. of use appel 4 on the Hence they joined by unity by of use object by lants their failure to proprietor same into single property, charge to the court’s or to submit they will be as a treated whole in as- by proper now claimed them to issues be sessing damages to the remainder in the issues, right complain have waived their part.” of a (Citing authorities.) of the manner which such issues were unity may of use rule applied also be 279, submitted. Rules 274 and Texas Rules where an owner’s land devoted a single Procedure; Express Frozen Foods purpose use or is by divided long 92, establish Odom, Tex.Civ.App., 229 v. S.W.2d public ed streets or highways. See 6 A.L.R. cited; ref., e., Lloyd’s and cases writ n. r. 1227; 2d Trustees of Boston Univer Casualty Castle, 1212— Insurer Tex.Civ.App., v. sity v. Commonwealth (1934), 57, 286 Mass. 498, ref., e.; writ n. r. S.W.2d South 29; 190 N.E. Texas Electric Service Com Development Corp. western & Settlement v. pany Linebery, Tex.Civ.App., 327 State, Tex.Civ.App., S.W. 282 S.W.2d writ 657, 662, 2d dism.; writ 22 Tex.Jur.2d, p. e.; ref., Liability U. S. n. Ins. r. Co. v. 152, Eminent Domain. § Tex.Civ.App., Baggett, S.W .2d writ e.; ref., Williams, Stone v. n. r. Tex.Civ. Under circumstances this 151; Seymour App., 358 S.W.2d v. Texas however, case, it was not error to submit Co., Ry. O. & N. on theory first seven issues ref.; Employers Insurance and the tracts from which Tracts Co., Erection Texas Steel Ass’n v. Tex.Civ. separate, 1 and were isolat ref., App., 344 S.W.2d writ n. r. e. ed tracts. The error inwas the submission herein respect appellees will file a remittitur of issues with If to Tract 15, 1962, or before unity on October appellees on a basis after with $7500.00 he will Trial judgment of the reformed, and, as accordingly, reformed affirmed; otherwise, judgment cause and the
Trial Court will be reversed new trial.
will remanded for be sitting.
BELL, J., disqualified and not C. Remittitur Filing of
On
WERLEIN, Justice. indicated September 27, we
On appellees if would opinion writing before remittitur
file a of $7500.00 15, 1962, judgment of the
October reformed, and, as reformed, court would be affirmed; judgment otherwise be
would reversed trial court be would Appellees filed
the cause remanded. suggested remittitur $7500.00. date, judgment
Accordingly, as of by deducting court is reformed amount reformed, appellees, and, as so
recovered affirmed, disqualified Bell Chief Justice sitting.
and not by eith- may filed rehearing
Motion *7 date. days after this fifteen party within
er COMPANY, Appellant, INSURANCE
GULF Appellee. VELA,
Victor
No. 11033. Appeals of Texas.
Austin. 7, 1962.
Nov. 21, 1962.
Rehearing Nov. Denied