*1 domicile, the Code to determine Probate appellee that
pleading adequately apprised New contending were appellants domicile. Hampshire not the decedent’s such, as entitled to be filed soon As recorded. foreign will was filed and as therefore, remand, 71. We Tex.R.Civ.P. proceed- court for probate this cause to Otherwise, the domicile. ings determine order is affirmed. ELECTRIC SERVICE
TEXAS COMPANY, Appellant, ux., Appellees. Burlyn H. NELON et No. 17775. Texas, Appeals Civil Court of Fort Worth. 14, 1977. Jan. Rehearing March 1977. Denied
«65 Gooch, Hanger, Collins, Cantey, Munn & Johndroe, III, Jack C. Wessler and S. G. Worth, appellant. Port for Shrull, Crumley, Murphy & William M. Worth, Murphy, appellees. Fort
OPINION
PER CURIAM. presents appeal
This case from a con- against demnation award entered public utility proceeding in a resulting from the construction of Comanche Peak generating plant, the first nuclear-powered generating plant Appellant, in Texas. Texas Electric Company, Service asserts excessiveness in award for to the market value of the remainder of the owner’s land as a result of the condemnation strip of land for railroad easement in that it was improperly influenced testimony of fear purported danger. appeal is based upon “no evidence” and “insufficient evidence” relating to the jury’s findings, the admissibility of fear of accidents or sabotage during waste, of nuclear jury gross- an assertion that the award was excessive, ly evidentiary and other matters. We affirm.
Appellant (to TESCO) be referred to as brought statutory proceed- condemnation ing against Burlyn Mr. and Mrs. H. Nelon. objected special These condemnees $22,000.00. commissioners’award of Subse- quently jury trial was held the 29th County, District Court of Hood Texas. Judgment was rendered ver- dict. 3, 1975, acquired June
On
right-of-way
easement of 7.687 acres as a
strip
spur through
for a railroad
the Nelons’
County.
358-acre
in Hood
portion
farm
A
spur
of the ten-mile railroad
crosses the
property about
miles
Coman-
3V2
generating plant
Squaw
che Peak
on
Creek
based
proof
alleged
fear was
It connects with the main
Reservoir.
Santa
Tolar,
experience.
farm
line at
Texas. The
actual
Fe Railroad
production of
currently leased for the
considering
“no evidence”
In
property,
on the
peanuts. No one lives
points we must view the evidence
*3
it
although
is used as a weekend retreat.
jury’s findings
light
favorable to the
most
presented evidence at trial
Condemnees
contrary.
to the
disregard
and
all evidence
purposes
of the railroad
that one of
any
probative
If
evidence of
force
away
spur
carry
was to
nuclear waste
line
findings,
jury’s
to
we are
support
bound
Peak site.
It is undis-
Estate,
from the Comanche
findings.
by
King’s
In re
150
those
waste
be
portion
that a
will
puted
662,
(1951).
«67 damage and the al- REMAINDER IMMEDIATE- remainder VALUE OF legedly resulting taking from the for the LY AFTER TAKING railroad, apart from a consideration of the testi witness Thomas Condemnees’ its effect evidence of fear and objection fied over to his that there value of the remainder. in the value of greater diminishment
small tracts near a railroad than in the away. farther As an exam of those OF REMAINDER IMMEDIATE- VALUE ple, Creek Estates to he cited: Stroud LY BEFORE TAKING (3 lots) a 1973 sale of 11 acres Schemake: he Nelon testified that was in the acre; per far the railroad at $1000 commercial and residential construction Estates to Lucker: a 1973 Stroud Creek *4 buying has been land for de business and (11 lots) abutting sale of 42 the rail acres In velopment opinion since 1959. his the per road at acre. $500 per value of the tract was acre at the $1000 opinion Thomas testified that in his taking, time of June 1975. per demnees’ remainder was worth $500 expert Condemnees’ value witness was utility acre after the condemned the land appraiser real estate Vernon Thomas. He right-of-way. for its property’s highest testified that only opinion other evidence of value best development use was for small-tract taking after was that of witness and for small-scale food and pro- livestock presence Daniels. He testified that the opinion duction. It was his the re- railroad had no effect the value of mainder was per worth acre immedi- $800 opinion that in remainder and his it was ately taking. before the Thomas based his per worth acre before and after tak- $700 opinion upon the following property sales of ing. which he comparable: (1) considered Wil- We hold that there was sufficient market Hyde: liams to a 1974sale of 30.25 acres at supporting data condemnees’ value evi acre; per (2) Ballard $1500 to Pearson: a gives dence. “When a witness evidence acre; 1973 sale of 245.755 per acres at $1000 value, acquainted that he is with market he (3) Johnson to Ross: a 1974 sale of 29.2 prima qualified testify is facie concern acre; acres per (4) at Manning $800 expert,” question value as an and the McKenzie: a 1974 sale of 38.5 acres at $825 then weight becomes one of the of his testi per acre. Cohrt, mony. County Jefferson v. 487 witness, real estate Beaumont, (Tex.Civ.App., S.W.2d 446 appraiser Daniels, James W. testified that 1972, writ); City no v. of Houston McFad only remainder was per worth acre $700 den, Hous taking. before He opinion upon based his ton, Dist., 1967, e.). 14th n. writ ref’d r. following sales which he considered comparable: (1) toWilly Decker: a 1974 TO EVIDENCE OF DAMAGE acre; (2) sale of 80 per acres at Davis $900 REMAINDER to Williams: a 1973 sale of 157 acres at Randall, Henry a tenant who farms the acre; per Ragle: Couch to a 1973 $557 land, Nelon testified the railroad bi- acre; per sale of acres at $525 way sects the land in such a Ramsey: Moore to a 1974sale of 89.23 acres would be considerable inconvenience in its per at acre. $644.44 urges future cultivation. TESCO that such
The weight opinion testimony should not be considered as evi- presented was a matter for deter- damage dence of to the because remainder ample mination. There was evidence to damage it does not relate which inter- jury’s finding per acre $800 feres with the use of the land for small as the taking. value of the remainder before development. tract There was also testimo- however, We overrule TESCO’s 3. ny, highest and best use production timony of the land was for small-scale that the fear of nuclear fur- of food and livestock. ther lowered the value of remainder to per acre. It our $350 Certainly properly the evidence was necessary predicate laid. admitted. Evidence interference with interrogatory In answer to as a is an cultivation result condemnation purposes that one of the stated rail- may be considered in award element spur carry road line was to nuclear waste ing damages. Texas Electric Service Com away from the Comanche Peak site. At Etheredge, (Tex.Civ. pany 324 S.W.2d322 trial, Wendt, Eastland, engineering Maurice 1959, writ). App., no manager called condemnees as an ad- objection no TESCO made spent verse testified that atom- charge court’s which instructed the plant ic will at fuel first be stored site re (the uses consider “all to which repro- then moved to another site for mainder) reasonably adaptable and cessing. proba which it either is or in all reasonable He also answer to testified that TESCO’s bility will with the reason become available that the rail- interrogatory meant able future.” use road would be available for such but condemnees, in- Exhibits introduced that was it would actual- not certain that land, cluding portions photographs *5 ly plans be used for removal so because damage also evidence the nature of the and He yet of the waste had not been made. pho- upon its effects the remainder. These however, that the rail- testify, would not tographs parts showed of the farm before transporta- road be used for would not after the and construction the railroad tion the waste. begun, made, types of cuts of land relevancy regarding the used, The rule types of fills railroad buying of the proof of fear in minds the property. embankments constructed on public set in Heddin v. Delhi Gas out that condemnees met their bur- hold Pipeline Company, damage den to show the nature of the (Tex.Sup., 1975). “. . . fear in the remainder, upon por- the effect various public on the date of buying minds of relationship tions the tract and the proof taking is relevant same to market value. Industrial Coastal following appear: elements when the City Authority Reynolds, supra; Water “1. That in reason or a basis McFadden, supra; of Houston v. State v. fear; experience for Scarborough, 383 S.W.2d “2. That such fear enters into the calcu- Texarkana, 1964, e.). r. ref’d n. writ in persons lations of who deal evi- having presented ample Condemnees buying selling proper- of similar Spe- support jury’s findings dence ty; and taking, after we cial Issue No. as to value of market value be- Depreciation “3. overrule 2 and 4. of such fear.” cause of the existence to establish required were Thus condemnees OF EVIDENCE OF ADMISSIBILITY danger forming the basis an “actual either FEAR IN DETERMINING MARKET reasonable, fear is of such fear or that the VALUE AFTER TAKING experi- actual whether or not based fifth that the point complains Heddin, supra. ence.” erred in the admission of the trial court witness, Dr. Pe Ver- Condemnees’ testimony Girardot, professor Thomas, university ter is a regard alleged in reduction A. non in solid waste man who teaches a course value of the condemnees’remain- market in agement, disposal of nuclear including the purported of fear of a because der land trans He that the railroad danger. that no waste. testified TESCO asserts nuclear waste across portation high-level tes- nuclear was laid for Thomas’s predicate proper property presents transportation condemnees’ an CO that actual of nuclear waste danger escaped along dangerous radiation was not or that fear of such right-of-way danger value of danger ten-mile because of the did not affect the market interpret the remainder. We sabotage along of accidents or the route. do not Heddin as proposition. He further testified that the fear is for this The rule in based fact, applies rather Heddin fancy, than delusion to evidence of accidents imagination occurring taking. because of that the after the date of con- might rupture tainers in an accident. He sufficiently We hold that condemnees transpor- also testified that the hazards of demonstrated that the fear of nuclear dan- tation of nuclear study waste were under ger sabotage during from accidents or Regulatory the Nuclear Commission. transportation waste is based in reason, establishing proper predicate It is thus proved true it was not that it was probable for Thomas’s as to mar- might causing an event occur reduced ket value as a result of such rupture escape of the containers fear. proof radiation. Nor was presented that also had some evidence of the yet shipping there has as been a breach of a County existence of fear the Hood area container in commercial Wendt, from the of Maurice nuclear waste. But the rule in Heddin does own engineering manager. not require type that an accident of the concerning public Wendt testified infor- occurred; already feared have it is suffi- program mation TESCO instituted cient if there ais basis in reason for the County planned Hood at the time the con- fear. plant struction of the was announced. He urges purposes TESCO also conceded that one of the admission of program fear in allay public. condemnees’ case-in-chief was error was to fears of the Heddin, under supra. pipeline In that Wendt further testified Fort Worth case, newspapers, demnation pipeline evidence of a which circulate in Hood Coun- acci- *6 ty, dent dangers which occurred had carried articles on the of after the date of tak- transporting nuclear was held waste. inadmissible to substantiate allegations of fear of actual danger because comparable involving There were no sales it was not offered to rebut an assertion by question the ultimate of how condemna- the condemnor that pipeline the was not involving tions particular the element of dangerous or any that fear of danger such fear had affected the market value of other did not affect market value. The court in property. remainder The instant case was general Heddin stated “the rule that com- the first in the area in which it was neces- pensation by for land taken eminent do- admitting sary propriety to consider the of main is by measured its market value at the evidence of fear of such nuclear as a taking time of appear would require to factor in a decrease of market value. exclusion of ruptures evidence of all occur- Of course there must be a first time for ring after the taking. date of rupture A events, and the happening the of admission occurring subsequent to the date taking of proper of Thomas’s in this could not have had an effect on market undoubtedly qualified. He was case. TES- value as of the date of taking.” 522 S.W.2d objection ground CO made no on the that 886, 889. any qualification. he lacked He testified has complained
TESCO not of the intro- general public developed had a fear duction any of evidence of accidents or sab- railroad, by caused the intended use of the otage in the of nuclear waste gaVe expert opinion his as to the and he 3, which occurred after June 1975. Its con- value of the remainder of reduced market apparently tention is that all evidence of property the Nelon which resulted. TES- fear should have been objection excluded from con- merely CO’s that condemnees demnees’ case-in-chief and could have been lay proper predicate failed to a for his testi- offered to rebut by mony an assertion of decreased market value because of TES- price ($656.50) of properties; sale the four fear, rejected conten- we that the and have computation of in per- the difference tion. (March the oldest sale price acre between point. fifth We overrule TESCO’s 1973) (September 1974) and the newest $375; amounting computation ON REMITTITUR monthly rate of increase average a re- point asks that sixth ($20) period separating 18-month over the the part applied mittitur be the for condemnees two sales. Counsel established judgment which court’s then added an increase of based $180 difference, as upon the based average monthly increase over the $20 values con- jury, in the found extending period last nine-month before and after demnees’ remainder taking sale cited Daniels to date taking. 3, computations re- on June 1975. These in this ground for remittitur find no per acre as the sulted in the sum $836.50 case, point. overrule this we value of condemnees’ remainder based range were well within The values own “logical extension” of Daniels’ tes- the market timony. There is no indication of witnesses. objection to method made no this jury, passion part or on prejudice the charts on of cross-examination until in no and there is manifest excessiveness computations which these were made were judgment. damage award of the Urban At themselves offered evidence. Ag. City Marcos Renewal San objected admission point TESCO to their Bethke, Aus- had their reason Daniels denied for the Tex.Jur.2d, tin, 1967, e.); n. r. writ ref’d had condemnees validity and counsel for Domain, “Excessive Eminent Sec. up. prove them not taken the stand verdict,” (1961). p. 443
insufficient portion of the We have examined this the events in the examination record and EVIDENTIARY MATTERS OTHER leading to the in- up opposing witness complains point seventh While seems troduction the exhibits. overruling its court erred in trial jury argu- made a that condemnees’ counsel of exhibits objections admission evidentiary stage, ment at testify permitting condemnees’ counsel amounted nothing in what occurred which presence. concerning them in the Judg- “If T.R.C.P. to reversible error. eighth point complains that these *7 It our conclusion that ment Reversed.” averaging process employed exhibits error, not as was any, if was such the admis competent, which did not constitute cause, to nor did it reasonably calculated an the sible evidence of return an answer cause the to probably 3 and 4. Special Issues Nos. swers different any issue the verdict Daniels, of During his cross-examination been returned had have from what would witness, for attorney the TESCO’s not the error occurred. listing four used condemnees charts eighth seventh overrule TESCO’s previ- had properties which Daniels sales points. con- comparable to ously testified were com TESCO By point its ninth con- remainder. Counsel for demnees’ in overrul court erred plains he that the trial what termed then advanced demnees New Tri “Supplemental” Motion prior testimo- its Daniels’ logical extensions of newly discovered evi grounds of as al on rejected those conclusions ny. Daniels upon appraisal an incorrect dence. being based
procedure. hoped to TESCO by The Reactor Rasmussen new trial obtain a shown on exhibits
The conclusions Regu- the Nuclear average Safety Study by released computation a included 1,1975, latory power Commission on December vicinity plant being in- date this case went to trial. killed, sustaining jured property or dam- age as a result of a reactor failure inside There was at the hearing on plant” occurring or some other event Report the motion that the Rasmussen plant. inside tained the statement that it possible is not probabilities estimate the of acts of sabo- argument hearing at the tage which result in danger would or loss of Girardot, con- that of Dr. sought life. TESCO to use this statement expert, might demnees’ have been different at a new trial to show that at trial if he had the final Rasmussen Girardot, Dr. condemnees’ Study, position which Dr. ex- Girardot investigation was not based scientific pressly rejected. of the risk involved in the “newly this discover We have examined nuclear waste material. asserts perceive how it ed evidence” and fail this statement is evidence that there is no upon the material issue of market bears basis in fact for the alleged fear. hold that value at time of trial. We TES- hearing At the Dr. Girardot testified requirements set CO has not satisfied Report Rasmussen did not attempt to ana- Gulf, Co., Ry. C. & F. forth in Conwill v. S. lyze the hazards of transpor- nuclear waste 96, quoted 85 Tex. S.W. tation. He also testified it was not Casualty approval with in New Amsterdam study the Regulatory Nuclear Commission Jordan, v. Company making of the hazards of transporta- 1962), (Tex.Sup., viz: “A new trial will not tion of nuclear waste to which he referred granted ground newly-discov be on the which, at trial and completion, he evidence, appear unless it is made to ered regard would as having some basis in the knowledge it has come to the probability. science of trial; applicant since the it could not There was also testimony hearing at the by have been sooner discovered the exercise expert, Garrard, Dr. C. William diligence; merely it is cumula not Jr. employed Dr. Garrard was as a nuclear tive; purpose is not for the engineer manager nuclear fuel impeachment.” Texas Utilities Company Service and was point. We overrule ninth responsible for nuclear fuel at the Coman- Judgment is affirmed. che plant. Peak Dr. Garrard admitted on cross-examina-
tion that he attempt did not to obtain a
copy trial, report until after although he had mentioned it attorneys to TESCO’s trial;
prior to copy that a draft had been 1974; available in and that on November WALTERS, Appellant, Mahlon L. “Science”, 1975 an article appeared in periodical to employer which his subscribes. article, which was admitted in evidence PETE, Appellee. Luvenia Allsbrook hearing, at the *8 was critical of the Rasmus- No. 8379. Report sen analyze because it did not “the catastrophes sabotage likelihood of Texas, Appeals Court of Civil war, acts of or the risks involved in other Texarkana. cycle, elements of the fuel transpor- such as Jan. 1977. tation disposal”. and waste Rehearing Denied Feb. 1977. Although he not having did recall read article, Dr. “Science” Garrard also ad- mitted Report that the Rasmussen concerns
“the chances people living within the