DocketNumber: No. 3451.
Citation Numbers: 300 S.W. 250
Judges: WILLSON, C. J. (after stating the facts as above).
Filed Date: 11/22/1927
Status: Precedential
Modified Date: 1/13/2023
In submitting the special issue as to the market value of the land the trial court, after defining the term "market value," instructed the jury as follows:
"In determining the value of the property in question all of the uses to which it may be applied and for which it was adapted on or about July 13, 1926, are to be considered, and not merely the condition that it was in at that time and the use to which it was then applied by the owner.
"You are further instructed that in determining the market value of said property on or about the 13th day of July, 1926, you should consider the condition of the property at that time, its locality with respect to its use for any purpose to which it might be applied at that time, and any increase or development thereof that might have been reasonably expected in the immediate future at that time affecting the market value of this property. In ascertaining what the market value involved in this controversy was on or about the 13th day of July, 1926, you should consider the conditions then existing, but you would not be authorized to consider speculative or merely possible contingencies, and you would not be authorized to consider evidence as to speculative values."
Appellants objected to the second one of the two paragraphs of the court's charge set out above, on the ground that it (1) was an unnecessary repetition of instructions in the other one of the two paragraphs, (2) was in nature of a general charge, and (3) was on weight of the evidence, and complain here because the court overruled their objection. In so ruling we think the trial court erred, and that the error requires a reversal of the judgment. By the terms of the statute (article 2189, R. S. 1925), the court was required to "submit such explanations and definitions of legal terms [quoting] as shall be necessary to enable the jury to properly pass upon and render a verdict" on special issues submitted to them, but, said the Commission of Appeals, answering a certified question in Owens v. Navarro County Levee Improvement District,
Appellants insist that the judgment is erroneous so far as it undertakes to pass the fee-simple title to the land to appellee, and we agree it is. The special law creating appellee (Sp. Acts 38th Leg. p. 323) conferred on it "power to exercise the right of eminent domain and to appropriate property for the purpose of securing grounds for public school buildings and appurtenances * * * through the same proceedings and under the same rules set forth, as far as applicable, as are now or may hereafter be provided by the general laws of the state of Texas, for the condemnation of private property for the use of railroad corporations, or in any other manner, or by any other proceedings authorized by the general laws of this state for the condemnation of private property for public use, and to provide for payment therefor."
Article 3270, R. S. 1925, is as follows:
"Except where otherwise expressly provided by law, the right secured or to be secured to any corporation or other plaintiff in this state, in the manner provided by this law [of eminent domain] shall not be so construed as to include the fee-simple estate in lands, either public or private, nor shall the same be lost by the forfeiture or expiration of the charter, but shall remain subject to an extension of the charter or the grant of a new charter without a new condemnation."
Appellee does not contend that the statute just set out authorized the judgment, but argues it was authorized by either article 1109b, article 1175, or article 2722, of the statute. Article 1109b is confined in its operation to cities and towns of less than 5,000 inhabitants, and the power conferred by article 1175 was on cities and towns adopting the "Home Rule" statute (articles 1165 et seq., R. S. 1925). The power conferred by article 2722 is on county boards of education. Even if the statutes specified, because "general laws" should be held to be such as were contemplated in the excerpt set out above from the special law cited, we think appellee's contention should not be sustained, for by the terms of said special law said statutes could be appealed to only to justify the "manner" or `"proceeding" resorted to in condemning property.
It was error, we think, to permit the witness Potter to testify, over appellants' objection, that a corporation he represented offered to sell appellee land near that in controversy at $1,750 per acre. It is held that testimony of that kind is not admissible to show market value. Sullivan v. Railway Co.,
The determination of other contentions in appellants' brief depends upon the evidence heard at the trial which is not before us. What purports to be a statement of facts, sent to this court, while agreed to by counsel for the respective parties, does not appear to have been approved by the trial court, and for that reason cannot be considered here. Love v. Spencer (Tex.Civ.App.)
The judgment is reversed and the cause is remanded for a new trial.
*Page 253The motion is overruled.
State v. Willey , 360 S.W.2d 524 ( 1962 )
City of Austin v. Cannizzo , 153 Tex. 324 ( 1954 )
Morgan v. State , 343 S.W.2d 738 ( 1961 )
Andrews v. City of Dallas , 232 S.W.2d 753 ( 1950 )
Minyard v. Texas Power & Light Company , 271 S.W.2d 957 ( 1954 )
State v. Layton , 147 S.W.2d 515 ( 1941 )
United States v. Rose , 57 S.W.2d 350 ( 1933 )
Shaeffer v. Smyth , 22 S.W.2d 1088 ( 1929 )