Herndon v. Housing Authority of Dallas (261 S.W.2d 221, 1953)

DIXON, Chief Justice.

On motion for rehearing, the opinion handed down in this case on June 5, 1953 is withdrawn and the following is substituted therefor:

This is a condemnation suit. Appellant was owner of land fronting- 143 feet on Singleton Boulevard in the City of Dallas. The whole of the tract of land was taken. The improvements on the land consisted of a brick store building in which appellant operated a grocery; a frame building in which appellant operated a cafe; and a frame residence in which appellant lived. A jury in a County Court at Law by its verdict fixed the market value of the property at $37,186.

Appellant’s first point is that the trial court erred in refusing to give the following instruction to the jury:

“You are further instructed that the value of the land condemned is not to be estimated simply with reference to the condition in which the owner has maintained it or the use to which it is put at the time in question, but with reference to any use to which it is reasonably adapted. The best or most valuable use to which the land in question is adapted should be considered.”

We do not doubt that the requested instruction was a correct statement of one of the several elements that go to make upmarket value. But we do not believe that it was error for the trial court to refuse to give the instruction. A correct definition of market value was given to the jury. Evidence was admitted showing the various uses to which the property could be put. It was proper to admit such evidence—in fact it was proper to admit evidence as to any or all of the various elements going to make up market value, including the best and most valuable use to which the property was adapted. Appellant’s attorney in his argument'to the jury might have, and perhaps did, call the jury’s attention to such evidence and its importance in determining market value. It was of course proper,for the jury to consider it in reaching their verdict. But why should it be necessary for the court to tell the jury that they should consider evidence which had been introduced and argued before them? The fact that the court permitted the evidence to be introduced and argued ought to make it obvious to the jury that it was proper for them to consider it.

This question has been considered by our Supreme Court, and here is what the Supreme Court said:

“ * * * in submitting the simple issue of the difference in the market value before and after, it seems to us proper that same should be submitted without instructions from the.court, other than.the formal definition of market value. It appears to us that in most if not all cases the whole matter of what may be considered by the jury and what may not be considered will be best determined by the trial court in the admission and exclusion of testimony rather than by, instructions to the jury. In that way the possibility of instructions upon the weight of the evidence, and also the possibility of the jury allowing damages upon the basis