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Behrens v. WTG Gas Transmission Co.

Court of Appeals of Texas, Third District, Austin

July 17, 2019

Joe Behrens, Appellant
v.
WTG Gas Transmission Company, Appellee Earl Behrens and Grace Behrens, Appellants
v.
WTG Gas Transmission Company, Appellee

          FROM THE 452ND DISTRICT COURT OF MCCULLOCH COUNTY NOS. 2015151, 2015155 THE HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith.

          MEMORANDUM OPINION

          Chari L. Kelly, Justice.

         In these appeals, Joe Behrens and Earl and Grace Behrens challenge the trial court's orders in their respective condemnation proceedings instituted by WTG Gas Transmission Company (WTG). Because these appeals raise common issues, we consider them together. We will affirm the trial court's orders.

         BACKGROUND

         Joe Behrens and Earl and Grace Behrens own adjacent tracts of land in McCulloch County. Joe's property is 282.52 acres and Earl and Grace's property is 106.142 acres. WTG desired to construct a six-inch pipeline that would cross both pieces of property. WTG petitioned the district court to condemn a 30-foot wide strip of land for a pipeline easement on the eastern boundary of each of Joe's and Earl and Grace's properties. The easements sought were 1, 855 feet in length on Joe's property and 880 feet in length on Earl and Grace's property. The land that WTG sought to condemn had a surface area of 1.282 acres of Joe's property and .607 acres of Earl and Grace's property. Additionally, WTG sought temporary easements on additional acreage on both Joe's and Earl and Grace's properties for a construction site.

         The district court appointed three special commissioners to determine the value of the land that WTG sought to condemn. See Tex. Prop. Code § 21.014. Following a consolidated hearing, the commissioners awarded $436, 780 to Joe and $159, 213 to Earl and Grace. WTG objected to both awards as excessive. After setting the matters for trial, WTG deposited the amounts awarded in the court's registry. Joe and Earl and Grace withdrew the deposited funds, thereby acknowledging WTG's right to condemnation. See Coastal Indus. Water Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 599 (Tex. 1979) (landowner who withdraws award from registry may continue to litigate issue of compensation but is prevented from litigating right to take property). WTG's petitions for condemnation against Joe and Earl and Grace were consolidated for trial.

         At trial, Joe and Earl and Grace designated David R. Bolton as an expert witness to provide his opinions regarding the market value of the Behrens' properties, the highest and best use before and after the taking, comparable sales, paired sales, and other factors affecting value. Bolton determined that the highest and best use of Joe's and Earl and Grace's properties was "agricultural and rural recreational/residential with sand mining potential." Bolton testified that the market value of Joe's property was $5, 300 per acre and that the market value of Earl and Grace's property was $6, 000 per acre. Bolton opined that the combined market value of Joe's and Earl and Grace's properties before the taking was $2, 135, 000. Bolton estimated that, after the taking, the market value of the acreage not in the easement was diminished by 15%, and the market value of the acreage within the easement was diminished by 90%. Bolton calculated a combined after-taking value of $1, 805, 000 for both properties. Thus, Bolton opined that $330, 000 would adequately compensate Joe and Earl and Grace for the taking. Bolton added an additional $183 as damages for the temporary easement for a total compensation value of $330, 183.

         WTG's expert Justin Bierschwale testified that only the 1.282 acres of Joe's property within the pipeline easement were damaged by the taking. He opined that the remaining 281.238 acres were not damaged and retained their full market value of $3, 900 per acre. As for the 1.282 acres within the pipeline easement, Bierschwale testified that the market value of that property was diminished by $4, 500 (approximately 90%). To that damages number, Bierschwale added $1, 108 as compensation for the temporary construction easement and $2, 900 as cost to cure, [1] for a "rounded" total compensation amount of $9, 000. Bierschwale testified that, similarly, only the .607 acres of Earl and Grace's property within the pipeline easement was damaged by the taking. He opined that the remaining 105.535 acres were not damaged and retained their full market value of $4, 250 per acre. As for the .607 acres within the pipeline easement, Bierschwale testified that market value of that property was diminished by $2, 322 (approximately 90%). To that damages number, Bierschwale added $430 as compensation for the temporary construction easement and $1, 100 as cost to cure, for a "rounded" total compensation amount of $4, 000.

         After the hearing, the trial court made its own calculations of the amounts to award Joe and Earl and Grace to compensate them for the taking. The trial court assigned before-taking per-acre market values of $3, 900 for Joe's property and $4, 250 for Earl and Grace's property. The trial court determined that 20% of each of Joe's and Earl and Grace's properties was damaged by the taking and that of that 20%, the market value of the acreage not within the easement was diminished by 10% and the market value of the acreage within the easement was diminished by 90%.[2] Based on these findings, the trial court calculated that $33, 046 would compensate Joe for the diminution in the market value of his property caused by the taking and that $13, 824 would compensate Earl and Grace for the diminution in the market value of their property caused by the taking. To those damages numbers, the trial court added the same amounts that Bierschwale testified would compensate Joe and Earl and Grace for both the temporary construction easements and the cost to cure.

         The trial court rendered judgments that Joe receive a total amount of compensation for the taking of $37, 054.30 and that Earl and Grace receive a total amount of compensation for the taking of $15, 354.40. The trial court filed combined findings of fact and conclusions of law for both cases. Joe and Earl and Grace filed motions for new trial, which were overruled by operation of law. Joe and Earl and Grace then perfected these appeals, each bringing one issue challenging the trial court's determination of the damage to the value of their property caused by the taking.[3]

         DISCUSSION

         We begin by reviewing the standard for valuing a pipeline easement in a condemnation proceeding. Compensation for land taken by eminent domain is measured by the fair market value of the land at the time of the taking. City of Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 183 (Tex. 2001); Heddin v. Delhi Gas Pipeline Co., 522 S.W.2d 886, 888 (Tex. 1975); Fuller v. State, 461 S.W.2d 595, 598 (Tex. 1970). The general rule for determining fair market value is the before-and-after rule, which requires measuring the difference in the value of the land immediately before and immediately after the taking. Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.2d 73, 76 (Tex. 1988); City of Pearland v. Alexander, 483 S.W.2d 244, 247 (Tex. 1972). When, as here, only part of the land is taken for an easement, a partial taking occurs. Westgate, Ltd. v. State, 843 S.W.2d 448, 456 (Tex. 1992). In this situation, the before-and-after rule still applies, but compensation is measured by the market value of the part taken plus any diminution in value to the remainder of the land. Id.; State v. Meyer, 403 S.W.2d 366, 371 (Tex. 1966); City of Austin v. Cannizzo, 267 S.W.2d 808, 812 (Tex. 1954).

         The factfinder may consider the highest and best use to which the land taken can be adapted. Bauer v. Lavaca-Navidad River Auth., 704 S.W.2d 107, 109 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.). The existing use of the land, in this case agricultural and residential, is its presumed highest and best use, but the landowner can rebut this presumption by showing a reasonable probability that when the taking occurred, the property was adaptable and needed or would likely be needed ...


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