Court of Appeals of Texas, Third District, Austin
THE 452ND DISTRICT COURT OF MCCULLOCH COUNTY NOS. 2015151,
2015155 THE HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING
Chief Justice Rose, Justices Kelly and Smith.
L. Kelly, Justice.
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
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.
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.
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.
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,  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.
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
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
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.
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).
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 ...