Grant v. United Gas Pipe Line Co.

NYE, Justice

(dissenting and concurring).

I withdraw my original dissenting opinion and substitute the following opinion therefor.

The appellee correctly concedes that the applicable rule on a no evidence point is that the appellate court must accept the evidence and the inferences therefrom in the aspect most favorable to the appellants and must disregard all contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (Tex.Sup.1953). Applying this rule to all of the evidence in the light most favorable to the appealing party, I would hold that the appellants have failed to produce sufficient evidence of probative value from which a jury could have determined at least one of the essential elements of appellants’ cause of action. This being true, the trial court was correct in instructing a verdict for nominal damages at the close of appellants’ case.

The parties stipulated and agreed that the only issues to be tried were those of value and damages. Thereafter, the burden of proof rested upon the appellants to prove damages as to the part taken, by virtue of the easement, and the damages to the remainder. McDowell v. Central Power & Light Company, 420 S.W.2d 816 (Tex.Civ.App.—Corpus Christi 1967) and cases cited therein. The essential elements which the appellants were required to prove, relate to: 1) the value of the land within the easement prior to the taking; 2) the value of the land within the easement area after the taking, burdened with the easement; 3) the value of the remainder of the land outside the easement area before and taking; and 4) the value of the remainder of the land outside the easement area after the taking.

The appellants state that there were only two types of land within and without the easement strip involved: Low land consisting of mud flats (salt flat land) and high land on which there was grass for cattle grazing. The appellants set out the evidence in their brief and emphasize that evidence upon which they rely in support of a reversal. This evidence differs from the evidence relied on by the majority of this Court. The following evidence and argument is what the appellants contend will support the issues:

“The undisputed and uncontradicted expert testimony given by landowner Jack Grant as to the value of the high land in the easement strip and in the remainder area before and after the taking necessarily included his opinion that the value of that high land was at least as great as the value of the low land in the mud flats.

This being true, it follows that the jury, had it been unable to tell from the evidence the quantum of each of the two kinds of land, could have treated all the land as low land and could have properly applied thereto the uncontroverted low land values testified to by Mr. Grant.

By doing so the jury would have found in his testimony evidentiary support for findings establishing the following: that the value of the easement strip before the taking was $1,000 an acre and that its value after the taking was zero; and that the value of the remainder area was $1,000 an acre before the taking and was $30 an acre after the taking.

This shows that the uncontradicted value testimony adduced by appellants would have supported a substantial recovery.”

In the first place I disagree with the majority as I believe there is absolutely no way of determining the number of acres of lowland (mud flats or salt flats) in the 280 acre tract upon which a jury could have assessed a value of $30.00 per acre, (either within or without the easement). The witnesses did not testify as to how many acres there were involved in each tract. The map and aerial photographs are not detailed or scaled in such a way that a juror could do more than guess or estimate the number of acres involved. This is what the witnesses did.

The majority states in their opinion, that if they are incorrect in assuming the jury could ascertain the exact number of acres of mud flats (low land) and high grazing land, then the jury could determine that the remainder of the easement after the taking had “no value’’.¹ This, they say, would authorize a jury to find that the appellants could recover “the full market ival-ue of the land taken.” This has never been the law in Texas under these set of facts. It was undisputed that the landowners reserved the mineral estate and the right to cross to and from their separated tracts on either side of the easement. This left the landowner with some beneficial use. It was said by the Supreme Court in the very case cited by the majority (on the “no value” theory) ² that: “* * * If the easement leaves the landowners with some beneficial use of the land, as it does, for instance, in the case of easements for pipe lines, power lines or other similar purposes, then the damages for the condemnation thereof, as a matter of law, will be less than the value of the fee. * * * ” Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (Tex.Sup.1950).

Alternatively, it is said by the majority of this Court, that if they are mistaken in what they have said above, and there is some remaining use and value to the easement taken, it could be inferred from the testimony of “witness Grant” that the easement strip would be worth $30 per acre after the taking. On a “no-evidence point” we must resolve all conflicting testimony and inconsistencies in appellants’ favor, but I cannot interpret any reasonable inference from witness Grant’s testimony “that the value of the easement strip after the taking would be $30.00 per acre or less”. In fact, the appellants themselves argue that witness Grant said just the opposite. In appellants’ original brief appellants state: “After the taking, the part of the tract covered by the easement taken by appel-lee, comprising 3.45 acres, was no longer of beneficial use to the appellants.9” Appellants’ footnote 9’s explanation of the evidence is absolutely contradictory to this Court’s inference of the same evidence. Footnote 9 says in part: “This fact (that the easement strip after the taking had no value) could have been inferred by the jury from the following testimony given by landowners Jack Grant * * * ” Appellants then quote from certain excerpts of Grant’s testimony and summarized his tes-timóny as expressing an opinion that the easement area had no value at all after the taking. Such judicial obfuscation arising out of these contradictory inferences, does not amount to evidence that would be legally sufficient to submit to a jury.

Appellee contends that there was an absence of proof of certain other vital facts whereby the trial judge was necessarily constrained to instruct the jury to return a verdict of nominal damages on the following matters :

(1) No evidence as to the value of the 3.45 easement strip before and after the taking.

(2) No evidence as to the value of the 276.55 acre tract remaining before and after the taking.

(3) No evidence of the market value of the easement taken and in the remainder both before and after the taking of the easement.

(4) No evidence as to the number of acres of other than flat land or the number of acres of salt flat land in: (a) the 280 acre tract; (b) in the easement taken; and (c) in the remainder.

(5) No evidence of damage to the entire 276.55 acre tract remaining after the taking.

Having reviewed all of the record and without discussing each of the above matters asserted by the appellee I agree that there was no evidence on at least one of the essential elements of appellants’ case, and probably others. Without evidence of probative value sufficient to support the submission of each element that was required to be proved the trial court’s judgment instructing the jury to return a verdict for nominal damages was correct.

Iagree with the majority of this Court that the County Court at Law No. 2 of Nueces County had eminent domain jurisdiction by virtue of the existing laws affecting the court.

The acceptance given by attorneys, the courts, and the public generally to the jurisdiction of the County Court at Law No. 2 of Nueces County, has remained unchallenged by everyone. For over two years, since the 1967 amendment was passed by the Legislature affecting the County Court at Law No. 2, its jurisdiction has been unquestioned. The particular amendment involved, enlarged the authority and jurisdiction of both the County Court at Law No. 1 of Nueces County and the County Court at Law No. 2 of Nueces County, to include matters of probate, eminent domain and lunacy. The appellants argue that jurisdiction in such matters was not given to the County Court at Law No. 2 by the Legislature. The public records of the County Court at Law No. 2 reflect that since the effective date of the 1967 amendment, approximately 1000 orders pertaining solely to matters of probate, eminent domain and lunacy have been signed and entered by the judge of the County Court at Law No. 2. This Court (No. 2) has handled almost all of the matters of probate, lunacy and eminent domain trials during the past two year period while County Court at Law No. 1 has handled nearly all of the criminal cases. The appellants’ challenge to County Court at Law No. 2 as to eminent domain jurisdiction, would also amount to a challenge with equal force to the Court’s jurisdiction as to probate and lunacy matters as well.

The Legislature by Art. 1970-339A, Sec. 3 conferred upon County Court at Law No. 2 concurrent and identical jurisdiction with County Court at Law No. 1. In 1967 the Legislature enlarged the jurisdiction of County Court at Law No. 1 to include probate, eminent domain and lunacy cases. In the same act the Legislature evidenced a clear intent to include eminent domain jurisdiction on County Court at Law No. 2 as well. It so stated in its caption.³ The Legislature on the other hand made no attempt to repeal any previously enacted section or sections that would otherwise conflict with this purpose. Therefore, by construing all applicable laws affecting County Court at Law No. 2, the intent of the Legislature can thus be ascertained. Maddox v. Flato, 423 S.W.2d 371 (Tex.Civ.App.—Corpus Christi, 1967, ref. n. r. e.). Our Supreme Court noted that the courts of Texas have consistently given controlling effect to the purpose stated in the caption of the legislative act involved, to arrive at the legislative intent. Southwestern Bell Telephone Company v. Houston Independent School Dist., 397 S.W.2d 419 (Tex.Sup.1965).

The purpose as stated by the Legislature in the caption of this Act is unassailable. The intention of the Legislature once ascertained, is the law.

The jurisdiction of the Texas Supreme Court was challenged on a certain occasion, because certain statutes then existing did not specifically confer appellate jurisdiction on that Court on a particular type of case before it. Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597 (Tex.Sup.1915). The Court, after discussing the applicable portions of the various statutes involved, said this:

“However, fmisdiction may be conferred upon a■ court by necessary implication as effectually as by express terms. It is an elementary rule of construction that, when possible to do so, effect must be given to every sentence, clause, and word of a statute so that no part thereof be rendered superfluous or inoperative. (Citing authority) Every portion of a statute should be construed in connection with every other portion to produce a harmonious whole. (Authority cited)

Another well-settled rule of construction is: ‘That zvhich is implied in a statute is as much a part of it as that which is expressed.’ (cases in authority cited)”

The Supreme Court went on to say that the specific provisions of certain articles * * *

“ * * * indicate, unmistakably we think, at least by necessary implication, the legislative purpose to confer appellate jurisdiction upon this court. Those references to the Supreme Court must be given some meaning and legal effect. They cannot be treated as mere surplus-age. Yet to deny that their effect is to confer jurisdiction upon this court is to render them utterly meaningless. Only upon the theory that the statute was meant to confer appellate jurisdiction upon this court was it at all reasonable for the Legislature to insert therein said provisions relating to briefing, advancing, calling, and hearing such cases in the Supreme Court. Our conclusion is well supported by authorities in addition to those already cited.

In a somewhat similar case, wherein it was contended that, in the absence of language expressly and specifically conferring upon a court the jurisdiction in question such jurisdiction did not exist, the Supreme Court of Missouri said:

‘We regard this contention as extremely hypercritical verbal criticism. There is no set form of words required to confer jurisdiction. To hold that this act was not a grant of jurisdiction because formal words such as those above indicated were omitted would be sacrificing substance to form. * * * Our imperative duty is to ascertain, if possible, the intention of the Legislature from the language employed.’ ”

The appellants have further contended that the county clerk had no power to transfer this case from the county court docket to the County Court at Law No. 2 docket. This condemnation proceeding was a civil case, once objections to the award were filed by both parties. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (Tex.Sup.1958). The clerk’s duty imposed by Article 1970-339A § 19 provides that all “civil cases” shall be docketed by the clerk in the County Court at Law No. 2. The county clerk of Nueces County serves as Clerk for three county courts: (A) The County Court, (B) the County Court at Law No. 1, and (C) the County Court at Law No. 2. The county clerk of Nueces County and the three courts involved, have uniformly construed the docketing statute in this manner. In any event, any technicality in this respect was waived by the appellants by their proceeding to trial without objection. This point cannot be raised for the first time on appeal.

I would affirm the trial court’s judgment, overruling appellants’ motion for rehearing and granting appellee’s motion.

1 . Emphasis supplied throughout.

2 . Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953 (1952)

3 . “An act — enlarging tlie authority and jurisdiction of both the County Court at Law No. 1 of Nueces County, Texas, and the County Court at Law No. 2 of Nueces County, Texas, to include matter of probate, eminent domain, and lunacy; * ⅜ * repealing all laws or parts of laws in conflict herewith; * * ” (emphasis supplied)