Texas Interurban Ry. v. Halford , 299 S.W. 277 ( 1927 )

Appellee sued appellant to recover damages for the alleged depreciation of the value of appellee's homestead caused by the construction of a railway trestle adjoining said premises and from the noise and vibration due to the operation of trains thereon. The appellant's defenses will be noticed hereinafter. There was a submission upon special issues, as follows:

"No. 1. Was the property of the plaintiff, as described in his petition, damaged by reason of the construction of the trestle by the defendant, as alleged herein? Answer. Yes.

"No. 2. What amount of damages, if any, has plaintiff suffered? In this connection, if you find any damages, you will assess damages at such an amount as you may find to be the difference in the reasonable cash market value of plaintiff's property immediately before and immediately after the construction of said trestle. Answer. $500."

Ever since the decision in Gainesville, H. W. R. Co. v. Hall,78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298, 22 Am. St. Rep. 42, our courts have consistently held that damages for depreciation of the value of a homestead caused by the construction and operation of a railroad in close proximity thereto, which damages are not common to the public generally, are recoverable under article 1, § 17, of the Constitution of Texas. Daniels v. Wright (Tex.Com.App.) 249 S.W. 454. In such cases it is not necessary to either allege or prove negligence in the construction or operation of the railway. Houston T. C. R. Co. v. Davis (Tex.Civ.App.) 100 S.W. 1012.

Another contention advanced is that plaintiff's petition did not allege facts sufficient to show that the construction of the trestle or the consequent operation of the road constituted a nuisance, and that the allegations in the petition that the trestle and the operation of trains was a nuisance is a conclusion of the pleader. The petition pleaded, it is thought, in sufficient detail, the construction of the trestle in near proximity to appellee's homestead and the hourly operation of trains thereon, attended by excessive noise, vibration, and smoke, and this was followed by the charge that the situation created by appellant constituted a nuisance. These averments appear to be sufficient under Judge Gaines' statement in Railway v. Hall, supra, to the effect that the carrying on of any business by a natural person upon his own land, which, by reason of the noise, smoke, and vibration caused by the operation of powerful machinery, materially diminished the enjoyment of the property of another, and rendered it less desirable as a residence, and depreciated its market value, is a nuisance at common law.

Complaint is lodged against the form of special issue No. 1 because of its generality and its failure to confine the consideration of the jury to the pleading and evidence of appellee. These objections are overruled. The charge clearly limits the jury's consideration to the case made by the pleadings. The interrogatory restricts the jury to the consideration of the manner of the construction of the trestle. The effect of this charge was to limit the jury's consideration to the damages, if any, suffered by the appellee, merely by the construction of the trestle, eliminating the element of damages due to the operation of trains thereon. This was to appellant's advantage under the decisions noted.

Special issue No. 2 is objected to as being on the weight of the evidence and as not submitting a correct measure of damages. The issue as shown above refutes both of these complaints, as the question as to whether there was any damage was left entirely to the decision of the jury and the measure of damages was in accord with all the decisions on the subject.

Assignments are presented, based upon several bills of exception, only three of which are found in the transcript. One is to the admission of the testimony of appellee, in effect that he had, within a recent time prior to the construction of the road, placed improvements in the approximate value of $1,500 on his said homestead, and that, taking the improvements and real estate into consideration, the value of the property was, at least, $3,000 at the time the trestle was built; that since the construction of the trestle he would take half of that for his property; that he had tried to sell the property, but never got any offers. The objection, as we construe the bill, was to all this testimony because the witness was not shown to be qualified; that his testimony was an opinion and conclusion and was not the proper measure of damages. The witness had previously qualified by testifying that he knew the value of his property at the time the railroad was constructed. Where the issue is to the value of property, the opinion of one qualified is admissible. The last objection that such testimony was not the proper measure of damages, if lodged specifically to that part of the plaintiff's testimony as to what he would take for his property, might present a serious question, but, as stated, we construe the bill to be an objection to the testimony as a whole. Part of the testimony was clearly admissible. In St. Louis, B. M. Ry. Co. v. Green (Tex.Civ.App.) 183 S.W. 829, it is held that one who qualifies as knowing the value of his real property may, as a part of the predicate for giving his opinion, state the character and value of improvements thereon. It was also permissible for plaintiff to state, after having qualified, his opinion as to the market value of the property. The rule is that, where testimony is admitted, part of which is admissible and part of which is not, a general objection to all of it is not reviewable.

The other two bills relate to the testimony of appellee's witness Moore. It is unnecessary to go into great detail in regard to this matter as the objection which we are asked to review is that the witness was not qualified to testify as to the depreciation in the value of appellee's homestead after the construction of the trestle in question. The witness was shown to have had 19 years of experience in the real estate business in Dallas, and testified he was acquainted with the market value of the property in question, had handled property in that vicinity, and had sold property near plaintiff's homestead since the construction of the trestle; that in his judgment plaintiff's homestead, prior to the construction of the improvements complained of, was worth $3,000; and that immediately after the construction of such improvements the value of the property had decreased 50 per cent. The bill shows that full opportunity was given the parties to test the witness' qualification and thereafter the court held him qualified, and we think the court's ruling was correct.

It is the general rule that real estate agents of experience in the community where property is situated, and who are informed as to the kind and character of the property in question, and qualify as to value, are entitled to testify. If such witnesses are not available, it would be difficult to find a person qualified to testify as to the market value of real estate.

What has been said above in detailing the testimony of the witness Moore disposes of appellant's complaints, both as to the sufficiency of the testimony to support the verdict and the further complaint that excessive damages were allowed.

Finding no reversible error, the assignments are all overruled, and the judgment of the trial court is affirmed.