State v. Spears

This is an eminent domain case brought by the State of Texas to acquire a strip of land for highway right-of-way purposes. This was a partial taking case and the only-points involved aré in connection with the-value of the remainder after the taking.. The State contends this finding of the jury is supported by no evidence and that such-finding is against the overwhelming weight and preponderance of the evidence.

The jury found, the market value of the-remainder, after taking, to be $8,905.00. Four expert witnesses testified, and placed' this value at $10,781.00, $11,735.00, $10,-387.00 and $9,550.00.

The jury was not authorized to fix a value on the property in question, after the taking, at a less sum than that given-by any witness. Houston Belt & Terminal Ry. Co. v. Lynch, Tex.Civ.App., 185 S.W. 362; Roberts v. State, Tex.Civ.App., 350 S.W.2d 388.

The award found by the jury was-.excessive by the sum of $645.00. We conclude, therefore, that the appellees should be allowed to take the lesser sum if they so desire; and, if appellees shall file in> this court within 15 days their remittitur of $645.00, being the difference between the-$8,905.00 found by the jury to be the value of the remainder, after taking, and $9,550.-00 being the least value testified to by the-witnesses, as to such value. Such remit-titur must also include all interest which has accrued on such $645.00. Failing this remittitur, the trial court judgment will be reversed and remanded. Rule 440, Texas Rules of Civil Procedure. Houston Belt & Terminal Ry. Co. v. Lynch, Tex.Com.App., 221 S.W. 959; Hopson v. Gulf Oil Corp., Tex.Civ.App., 237 S.W.2d 323.

The judgment is affirmed conditionally.