Opinion
No. 7978.
May 16, 1914. Rehearing Denied June 20, 1914.
Appeal from Tarrant County Court; Charles T. Prewitt, Judge.
Condemnation proceedings by the City of Ft. Worth against R. Morgan and others. Judgment of condemnation, and fixing the amount to be paid, and plaintiff appeals. Affirmed.
McCart, Bowlin, Terrell McCart and A. B. Curtis, all of Ft. Worth, for appellant. McLean, Scott, McLean Bradley and Carlock Carlock, all of Ft. Worth, for appellees.
The city of Ft. Worth instituted this action against the appellees to condemn 90 acres of land owned by them for the purposes of a water reservoir. There seems to be no dispute in the facts, except upon the issue of the value of the land; this issue alone being submitted by the court's charge, to which no exception has been presented. The opinion of the witnesses as to the value of the land varied all the way from $35 per acre, as stated by some of the witnesses in behalf of the city, to $300 an acre, as stated by one or more witnesses offered by appellees. The jury by their verdict fixed the value of the land at $65 per acre, aggregating the sum of $5,850, for which judgment was rendered, together with interest thereon at the rate of 6 per cent. per annum from the date of the taking, to wit, $711.75; and the city has appealed.
The first assignment of error is to the effect that the court erred in sustaining exceptions to that part of the city's petition alleging that it could only use the land sought to be condemned for "30 or 35 years, at which time said reservoir will be filled up with sediment, etc., so that it will have to be abandoned by plaintiff as a reservoir site, at which time said land would revert to the heirs or assigns." A sufficient answer to this assignment is that neither in appellant's statement under the assignment nor in the record that we have been able to find does it appear that the court sustained an exception to any part of appellant's petition. Moreover, we know of no law which would authorize the court to enter a judgment of condemnation limiting its effect to any specified number of years. In the very nature of things the result indicated in the petition is but conjectural, and a decree that would have the effect of compelling the city at the end of 30 or 35 years to abandon a reservoir, permanent in its nature, and established at great expense in the effort to supply the inhabitants with water, and compel the owners to again receive the land in its then condition, would certainly leave an open door for many difficulties which, as it seems to us, has been closed by our Statutes on the subject. The charter of the city of Ft. Worth gives the city power to condemn lands for the purposes sought in this suit, but declares that in such cases the proceedings are to be governed by the "general laws of the state relative to condemnations." Revised Statutes, arts. 1003, 1005, 6518, and 6519, specify the procedure under the state laws. Article 6519 provides that when, as here, "the whole of a person's real estate is condemned, the damages to which he shall be entitled shall be the market value thereof in the market in which the same is located." This was the measure adopted by the court's judgment, which we think is correct.
But little else remains for disposition. Several assignments are presented complaining of argument on the part of counsel for appellees; but in part it was clearly in answer to argument of one of appellant's counsel, and for the rest only tended, if of any effect, to enlarge the amount of the damages. There is no assignment complaining of the judgment as excessive, and a consideration of the evidence brings no such impression to our minds, so that we think the argument complained of, even if objectionable, is not of that character which would justify us in granting a new trial therefor.
The remaining assignment undisposed of complains of the action of the court in refusing to give a special charge; but nothing in appellant's statement nor in the record shows that exception was taken to this action, as required by Revised Statutes, art. 2061, as amended by act approved March 29, 1913. See Gen. L. 1913, p. 114; Heath v. Huffhines, 168 S.W. 974 (No. 7936), by this court, and not yet published.
We conclude no reversible error has been presented, and that the judgment must be affirmed.
SPIDER, J., not sitting.