text:
    STATE of Tennessee ex rel. Eddie SHAW, Commissioner, Department of Transportation, Plaintiff-Appellee, v. Ida Lou Carter SHOFNER, City of Fayetteville, Tennessee, Edison Burton d/b/a Three Point Gulf, Defendants, J. C. Moores, d/b/a Moores Oil Co., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    July 28, 1978.

      Brooks McLemore, Jr., Atty. Gen., Robert J. Ames, Asst. Atty. Gen., H. Donald Holman, Fayetteville, Milton Wauford, Nashville, for plaintiff-appellee.
    James R. Thompson, Fayetteville, John Shofner, Shelbyville, for Ida Shofner.
    Robert W. Stevens, Fayetteville, for Moores Oil Co.
   ABRIDGED OPINION

TODD, Judge.

With the concurrence of participating judges, the original opinion has been abridged for publication.

This is an eminent domain proceeding to assess compensation to an owner, lessee, and sub-lessee, for taking a part of a filling station and restricting access to the property by erection of curbs and sidewalks.

One of the defendants, J. C. Moores, lessee of the property, has appealed from jury award of $2,000.00 damages to the appellant’s leasehold interest. Other defendants have not appealed.

The property in question is at the corner of State Route 10 (U.S. 64) and Astrid Street in Fayetteville, Tennessee. At this point, U.S. 64 runs generally northeast and southwest and Astrid Street extends in a southeasterly direction from the intersection. The property is on the southeast side of U.S. 64 and on the southwest side of Astrid Street.

The natural grade of U.S. 64 and the adjoining property is downward moving from southwest to northeast, so that the lowest part of the property is at the intersection of U.S. 64 and Astrid Street and the ground level rises to the southwest of the intersection. Along the southeasterly line of the property at the border of Astrid Street is a stone retaining wall several feet high.

For many years, the property has been used as a filling station, and it is improved with the customary filling station building, underground storage tanks and two “gas islands”, each of which supports two gasoline pumps.

Prior to the taking these two gasoline islands were located eight feet (8') and nine and one-half feet (9½') from the edge of the highway right of way, but this close proximity was of little or no consequence because the travel lanes of the highway did not occupy the entire right of way, and the remainder of the right of way was an “asphalt shoulder”, so that the paved surface was continuous from the “gas islands” to the travel lanes, and the exact location of the edge of the right of way was disregarded.

Since there was no curbing or sidewalk, access to the filling station from U.S. 64 was most convenient and continuous throughout the entire 125 feet frontage of the property. The contour of the property at the intersection had been graded and paved so that vehicles might enter the station at the very apex of the intersection of Astrid Street. For this purpose, the stone retaining wall began several feet back from the highway frontage.

The highway improvement project involved two major effects upon the subject property.

First, in order to “round the corner” at U.S. 64 and Astrid Street into a gentle curve, a small, triangular tract was taken. The tract extended from the intersection, where it was eighteen feet (18') deep to a point forty feet (40') from the intersection where it had no depth at all. The third side of the triangle, adjoining the residue of the property measured forty-five feet (45'). Thus the triangle measured forty feet (40') along the old right of way line of U.S. 64, eighteen feet (18') along the edge of Astrid Street, and forty-five feet (45') along the new right of way line of U.S. 64.

The taking of this triangle had two adverse effects upon the convenience of access to the filling station. It consumed the area near the intersection where vehicles could formerly enter and leave the filling station, and it substantially narrowed the space between one of the gas islands and the (new) edge of the right of way.

In addition, the construction plans involved the construction of curbs and sidewalks along most, but not all, of the frontage of the service station. Vehicles cannot enter the station across the curbs which are six inches (6") above the level of the highway. However, the level of the top of the curbs and of the adjoining sidewalk corresponds to the level of the filling station drive.

Beginning at the westerly corner of the property farthest from the intersection, there is no construction for 20.5 feet of the frontage. That is, for this distance, access from the street to the station is unchanged. At this point (20.5 feet from the western corner) the curb and sidewalk begins. The curb begins at zero height and gradually rises for a distance of nine feet (9') to its full height of six inches (6"). At this point, the curb is interrupted for a distance of twenty feet (20') to provide a driveway across the sidewalk into the station twenty feet (20') wide. Beyond this driveway is a twenty foot (20') section of curbing followed by another driveway twenty feet (20') wide. Beyond this latter driveway, the curbing is continuous to and around the corner of U.S. 64 and Astrid Street. On Astrid Street, the curb and sidewalk ends eight and one-half feet (8V2') from the beginning of the stone retaining wall previously mentioned.

Thus, as compared to the previous 125 feet of continuous access to U.S. 64, there remains three (and possibly four) separate opportunities for access. The first is the 20.5 feet of frontage unaffected by the construction increased somewhat by the gradually rising curb which adjoins it. The second and third are the two twenty foot (20') driveways separated by twenty feet (20') of intervening curb. The possible fourth is a proposed new access to Astrid Street in the eight and one-half foot (8½') space between the end of the curb and the beginning of the stone wall. Admittedly, this latter proposal is complicated by the narrowness of the space, the steep grade to Astrid Street and the fact that a street sign is planned for this area.

A considerable amount of testimony was devoted to efforts to show that the three (possibly four) driveways provided access as convenient as formerly and that the space between the sidewalk and gas islands was adequate for vehicles being serviced.

For the western gas island, this was largely proved for two reasons. The first 20.5 foot unimproved space and the constructed driveways provide reasonably good access, and the sidewalk is no nearer this island than the old right of way line. No property was taken at this point in the frontage, so that the nearer edge of the sidewalk and old right of way line are identical at this point.

As to the other gas island, the access is definitely less convenient for two reasons. The constructed driveways do not provide convenient access. The driveways are immediately in front of the gas islands. A vehicle entering a driveway cannot move directly to the adjacent gas island, but must proceed beyond the island and reverse in order to get near the island. In respect to the second island this inconvenient procedure must occur on arrival and when leaving, that is, after being serviced, the vehicle is required to move in reverse for a distance before it can exit through the driveway.

The other inconvenience at the second gas island is the fact that a part of the taking extends in front of it and thus narrows the space between it and the right of way (sidewalk). At its narrowest point this space was estimated at six and one-half feet (6½').

In order to adjust to the problems just mentioned, the State’s witness (not an expert in filling station operation) insisted that vehicles could enter one of the front drives, proceed behind the gas island, between it and the filling station building where the space is some twenty-five feet (25') wide. After servicing, it is projected, the vehicle could leave by proceeding down a ramp (to be constructed) through the eight and one-half feet (8½') opening between the end of the wall and the end of the curb at the corner to Astrid Street. The projected cost of building the ramp to Astrid Street was $2,000.00.

Michael Choate, right of way engineer, gave details of the taking and construction and identified pictures showing vehicles in the filling station with temporary curbs in place as planned. Mr. Choate also testified he had worked at a filling station which had twenty foot (20') entrance drives. The other witness for the State was William Mercer, a professional real estate appraiser, who testified that the value of the entire property was $28,925.00, the value of the land taken was $196.00, the value of a “construction easement” was $89.00 and that the incidental damages were limited to “cost to cure”, consisting of the $2,000.00 cost of constructing the ramp to the lower level of Astrid Street. No explanation was given of how the ramp could be built or used with a traffic sign erected in the center of the space.

Appellant, Mr. Moores, testified that he had leased the property since 1941, had built the station and had sub-leased the property at a profit ever since; that he had a lease expiring October 31,1976, at $175.00 per month; that the lease contained an option for a five (5) year renewal; that the average gross rental received for the preceding twenty (20) months was $698.59 per month, rendering him a profit of $523.59 per month; that the construction destroyed the usefulness of the property as a filling station and he did not renew the lease.

H. L. Noblitt, a former gasoline distributor, testified that the property had been worth $85,000.00, but the construction would destroy 85% of the value for use as a filling station. A. G. Jennings, a gasoline distributor and former real estate agent testified the value of the property would be reduced from $80,000 to $17,500 by the construction. Hillard Parsons, Jr., a gasoline distributor, testified the property was worth $80,000 and that the construction “would almost kill it for a gasoline station.”

The jury awarded the owner $1400.00 for the land taken and $10,000.00 as incidental damages to the remainder. There is no appeal from this portion of the judgment.

The jury awarded Mr. Moores, the lessee — sub-lessor $2,000.00. From this portion of the judgment, Mr. Moores has appealed.

The first two assignments of error are as follows:

I.
“The court erred in not granting appellant a new trial or suggesting an additur.
II.
The verdict was grossly inadequate, irreconcilable with the proof, and wholly unfair and unreasonable, all as more particularly appears in the accompanying brief.”

In support of these assignments, appellant makes five insistences.

The first three insistences are that the verdict was inadequate, grossly inadequate and unsupported by any evidence as to amount.

Whether the verdict is adequate or inadequate, or whether it is supported by evidence depends upon the finding of fact as to whether the theory of the State or the theory of appellant is correct. If, as insisted by the State, the usefulness of the property as a filling station was not impaired by the construction (except by the necessity of constructing the $2000 ramp) then the verdict is supported by evidence and the amount is not inadequate. One of the witnesses for the State, Mr. Choate, did testify from his former experience as a filling station employee that the construction did not seriously impair the usefulness of the property as a filling station; but his testimony does not impress this Court as being well founded based upon the details heretofore discussed. Mr. Mercer, with no experience in the design or operation of a filling station, was allowed to testify as an expert on the subject of curative alteration. This Court is not impressed with the weight of the testimony just mentioned; but, on appeal from a jury verdict, this Court is not permitted to reweigh the evidence.

Moreover, the particular issue under discussion is one about which ordinary citizens would be competent to form an opinion without benefit of competent expert testimony. That is, jurors operate vehicles in and out of filling stations and see others do so, hence they would be competent to make some judgment upon the convenience or inconvenience of a filling station and the probability that the public would patronize it.

It is significant that appellant’s witnesses did not undertake to assess the reduction in rental value of the premises, but confined themselves to the matter of the usefulness of the property as a filling station (and no other purpose). It is well established that the measure of damages for taking is the fair value of property (or interest therein) taking into consideration all of its usefulness for all purposes. It might well be argued that the appellant, having constructed the filling station facilities on the leased land, could not possibly find other profitable uses for the property as it existed, but this aspect of the matter was not touched upon in the evidence.

It is argued by appellant that the jury rejected the theory of the State that the incidental damages were limited to “cost to cure” of $2,000.00, because there was an award of $10,000.00 incidental damages to the property owner. The jury is not required to accept or reject in to to the theory of either party, but may arrive at its own concept of truth and justice from the evidence. In so doing, juries seldom adopt the exact testimony of any particular witness.

In essence, the verdict of the jury was for a total of $12,000.00 incidental damages, of which $10,000.00 was awarded to the owner and $2,000.00 was awarded to the tenant (appellant). Evidently, the jury found that the usefulness of the filling station had been impaired to a greater extent than shown by the State, but to a lesser extent than insisted by appellant. The award of $12,000.00 was six times that proposed by the State’s witness. Evidently, the jury considered that the decreased usefulness should be allocated in accordance with time of occupancy — five years to tenant, and an indefinite number of years thereafter to the owner.

Even though this Court is not satisfied with the amount of a verdict, it has no authority to suggest an additur to correct the failure of the Trial Judge to do so. T. C. A. § 20-1330; Loftis v. Finch, Tenn.Ct.App. 1972, 491 S.W.2d 370. Nor is this Court authorized to reverse for a new trial for dissatisfaction with the amount of a verdict. Nethery v. Hornbuckle, Tenn.Ct.App. 1971, 484 S.W.2d 552.

The dissatisfaction of this Court with the amount awarded to appellant does not rise to the standard of “shocked conscience” or “gross inadequacy” or obvious prejudice or caprice of the jury, hence there can be no reversal on any of these grounds. This is especially true because of the procedural posture of the case.

Appellant concedes that the “unitary rule” is the law of Tennessee. That is, compensation for condemnation cannot exceed the fair market value of the property taken, and the total awards to various parties for their several interests in the property may not exceed the value of the property.

Applying the “unitary rule” to the present case, the total of the awards to the owner and the tenant for incidental damages cannot exceed the actual incidental damages sustained by the property. The jury has found the total to be $12,000.00, and has allocated $10,000.00 to the owner and $2,000.00 to the tenant. The owner has not appealed, nor was the owner named in the appeal bond, hence the owner is not before this Court on this appeal. The $10,-000.00 judgment in favor of the owner has thus become final and is not subject to disturbance on appeal. The only theory upon which a new trial could be granted to appellant would be a finding that the $12,-000.00 aggregate incidental damages were so grossly inadequate as to shock the conscience of the Court, thereby to justify a remand for new trial with opportunity for a finding of larger total incidental damages and corresponding increase in the compensation of appellant without disturbing the award to the owner. For a discussion of this thorny problem, see State v. Hurt, 63 Tenn.App. 689, 478 S.W.2d 775 (1971).

This Court is not so dissatisfied with the total award of incidental damages as to take the unusual action just described.

The first three assignments of error are respectfully overruled.

Where the appellate court is dissatisfied with the amount of an award, there is imposed upon the appellate court more imperatively the duty of scrutinizing the incidents of the trial and other errors assigned in the record. Huckett v. Brown, 49 Tenn. (2 Heisk) 264 (1871).

Although not assigned as error, it is noted that the Trial Judge refused to allow the State to introduce in evidence an amended construction plan showing that, after the “date of taking” but before the trial, the State had changed the width and arrangement of entrances into the filling station. To the inexpert eye of this Court, the new plan appears to aggravate rather than relieve the problem created by the construction. However, it was insisted before the Trial Judge that the amended plan would improve access to the filling station.

It would have been better procedure to admit the evidence in order that the jury might have a better knowledge of the actual construction, rather than to assess compensation for construction which was merely proposed and never carried out. In at least one unreported case, this Court has faced the situation where plans of a State highway were seriously changed to the detriment of the property owner after the conclusion of eminent domain proceedings. In said case, it was held that such change of plans give right of compensation under inverse condemnation, but the statute had expired for filing such. Also in said case, there was a serious lack of evidence of the actual plan presented to the trial court at the first trial.

In eminent domain proceedings in which the nature of the planned improvement is material, it is better practice to require the condemnor to exhibit to its complaint a detailed plan of the improvement which will thereby become a permanent record of the court. Such plan should be incorporated into the final judgment by reference, so that the rights of the parties may be specifically defined, both as to extent of taking and extent of incidental damages incident to the nature of the improvement.

Consistent with the practice just discussed, the parties should be allowed latitude of amendment and proof to enable the court as nearly as possible to know and consider the exact situation which will face the property owner after the improvement has been completed.

In the present case, the exclusion of the plan was not reversible error per se, and does not appear to have prejudiced appellant in respect to the amount of the verdict. If construction took place which was not described to the jury in this case, then the rights of aggrieved parties lie in an action in inverse condemnation.

Appellant’s fourth insistence is that the jury disregarded the instruction of the Trial Judge. Appellant does not cite the instruction in question nor argue the proposition.

Appellant’s fifth insistence is that the verdict is inconsistent. The basis of this argument is that the jury was obliged to award “all or nothing”; that is, that the jury, having found that the filling station was “ruined”, were obliged to award the value of the lease as testified by appellant and his witnesses. As previously discussed, the jury is not so strictly limited in its prerogatives.

Appellant’s sixth insistence is that, “the verdict indicated that the jury was confused, as more particularly appears in the brief accompanying these assignments.”

The “brief accompanying these assignments” consists of four propositions of law supported by authorities; eleven propositions of fact supported by citations to the record, and three pages of argument, but the nature of the alleged confusion of the jury is not mentioned.

It is true that the jury did not accept or adopt the evidence, theory or argument of either party; but, as heretofore discussed, the jury is not obliged to do so and is not necessarily “confused” because it finds the truth to be somewhere between the extremes of the evidence presented by the parties.

Had the members of this Court been sitting on the jury, the result might well have been otherwise. Had a member of this Court been sitting as trial judge, the verdict might well have been set aside because of disagreement as thirteenth juror. However, these possibilities do not alter the fact that the verdict of the jury, approved by the Trial Judge, is beyond disturbance by this Court except for reversible error by the Trial Judge or capricious verdict of the jury, neither of which are found in this record.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against appellant.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concurs.


source: Caselaw Access Project

author: POPE, Justice. STEAKLEY, Justice,

license: Public Domain

text:
    COUNTY OF HARRIS, Texas, Petitioner, v. James EATON et al., Respondents.
    No. B-7450.
    Supreme Court of Texas.
    Oct. 11, 1978.
    Rehearing Denied Dec. 6, 1978.

      Joe Resweber, County Atty., J. R. Hob-good, Asst. County Atty., Houston, for petitioner.
    Roland B. Darby and Larry W. Harrison, Houston, for respondents.
   POPE, Justice.

This is a negligence case which requires our decision whether, under sections 14(12) and 18(b) of the Tort Claims Act, Tex.Rev. Civ.Stat.Ann. art. 6252-19, the defendant Harris County owed the plaintiffs the limited duty owing a licensee, as insisted by Harris County, or the duty of ordinary negligence as the courts below have held. James Eaton, Doris Jean Burk Eaton, John C. Hall and Nancy W. Hall sued Harris County for personal injuries. The trial was to the court, which rendered judgment for plaintiffs. The court apportioned seventy percent of the negligence to the defendant Harris County and thirty percent to plaintiff. The court of civil appeals affirmed. 561 S.W.2d 245. We affirm the judgments of the courts below.

The suit arose from an automobile accident. Doris Jean Burk Eaton shortly after noon on February 29, 1976, was driving her 1976 Mercury Capri along the Riceville School Road in Harris County. Her passengers included the other plaintiffs. The day was clear and Doris Jean was driving in a southerly direction at 35 miles per hour. Riceville School Road is a lightly traveled two-lane asphalt roadway in Harris County, not within any corporate city limits. There was no approaching traffic. Her automobile struck a large hole in the asphalt pavement causing the car to flip and turn upside down in the ditch beside the road. Witnesses described the hole as oval shaped, varying at places from six to ten inches in depth and extending over ninety percent of the width of the highway. The hole was four feet wide at some points and nine feet wide at others. Pictures of the hole show that its deepest part was astride the center stripe and that one could not stay on the pavement and miss it. An approaching driver could see the hole when two hundred feet away but could not tell its depth from that distance. A southbound driver would cross at least one other “ehughole” before hitting the hole that caused the accident, but the many other holes on Riceville School Road that day were too small to pose a hazard. There were no signs, barricades or other devices warning that the large hole was dangerous. The upkeep of the road was a duty of the Road and Bridge Department of Harris County’s third precinct.

The road department had paved the road with one inch of asphalt between August 25 and 29, 1975. Its employees reported they had also cleaned the drainage ditches, cut the roadside grass, and patched the road’s chugholes during the period between February 9 and February 11,1976. Despite the road department’s reported repairs, holes were so prevalent on the roadway eighteen days afterward — the day of the accident— that the deputy sheriff who investigated the accident said that chugholes were “the rule of the day.” Part of the job responsibility of the road department superintendents was to notice and report needed road repairs. They were instructed to report the condition of the adjoining road as they proceeded back and forth from jobs, as they did several times daily. They had not reported any needed repair on Riceville School Road.

Defendant Harris County construes article 18(b) of the Tort Claims Act to impose upon the County only the duty owing a licensee. That duty would excuse Harris County from a duty to warn a licensee or to make the premises safe when the licensor, Harris County, did not have actual knowledge of the dangerous condition according to Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976), and State v. Tennison, 509 S.W.2d 560 (Tex.1974). The plaintiffs, on the other hand, urged and the courts below have held that, as a matter of statutory construction, the limitation of the governmental unit’s liability to that of a licensee does not apply in instances of “spe-eial defects such as excavations or obstructions on highways.” Plaintiffs urge that Harris County was negligent if it “should have known” of the dangerous condition since its duty was more than that of a mere licensor. These are the relevant parts of the Tort Claims Act, supra :

Liability of governmental units
Sec. 3. Each unit of government in the state shall be liable for money damages for ... or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. .
******
Exemptions
Sec. 14. The provisions of this Act shall not apply to:
******
(12) Any claim arising from the absence, condition, or malfunction of any traffic or road sign, signal, or warning device unless such absence, condition, or malfunction shall not be corrected by the governmental unit responsible within a reasonable time after notice, or any claim arising from the removal or destruction of such signs, signals or devices by third parties except on failure of the unit of government to correct the same within such reasonable time, after actual notice. Nothing herein shall give rise to liability arising from the failure of any unit of government to initially place any of the above signs, signals, or devices when such failure is the result of discretionary actions of said governmental unit. The signs, signals and warning devices enumerated above are those used in connection with hazards normally connected with the use of the roadway, and this section shall not apply to the duty to warn of special defects such as excavations or roadway obstructions.
******
Exclusions
Sec. 18. * * *
(b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, nor shall it apply to any such duty to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required in Section 14(12) hereof. [Emphasis supplied.]

The statutes provide an understanding of the kinds of dangerous conditions against which the legislature intended to protect the public. They are expressed as such things “as excavations or roadway obstructions.” Under the ejusdem generis rule, we are to construe “special defect” to include those defects of the same kind or class as the ones expressly mentioned. Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269 (1944); Farmers’ & Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120 (1911). The two examples that are included in the statute are not exclusive and do not exhaust the class. One characteristic of the class that should be considered is the size of the dangerous condition. The hole in the highway in this instance had reached the proportions of a ditch across the highway.

The County urges that the ditch also had to be “specially created” by the governmental unit. It is our view that an excavation or obstruction need not have been created by the governmental unit itself. Nothing in the statute expresses that idea. For example, an avalanche which clogs a mountain road would be an obstruction although the governmental unit did not create it. The same may be said of an excavation. Whether created by the governmental unit, by natural forces or by third persons, the dangerous condition on the roadway is the same. The significant difference between the situation in which the governmental unit itself created the condition and that in which something or somebody else created it is that the government will have actual knowledge of its existence if it created the condition. The governmental unit that has actual knowledge of its creation already has a duty even to a licensee. Lower Neches Valley Authority v. Murphy, supra, at 563. The proviso of section 18(b) was meant to enlarge the liability in some instances by imposing the duty to warn when there was a special defect. Accordingly, we hold that the abnormally large hole was a special defect and the County had the duty to warn as in the case of the duty one owes to an invitee.

Harris County argues alternatively that there is no evidence that the road department “should have known” about the road condition. Since the road crews had been on the road at least as recently as two weeks before the accident, the County primarily argues that there is no evidence the defect had existed long enough for discovery. The investigating officer’s testimony about the large depth and wear of the large hole in relation to the other non-hazardous holes on the road is some evidence that the hole had existed for a long time. Plaintiff James Eaton testified that the hole “looked like it had been there for a considerable amount of time.” We regard Eaton as testifying to a composite fact, a summary of all the small marks and indications of wear that would indicate age. Cf. Pinchback v. Pinchback, 352 S.W.2d 151 (Tex.Civ.App.—Waco 1961, writ ref’d n. r. e.); Maxwell v. Maxwell, 204 S.W.2d 32 (Tex.Civ.App.—Amarillo 1947, writ ref’d n. r. e.). Also, in the context of this record, plaintiff’s pictures of the hole in question offer some evidence it had existed for several weeks. There is evidence the County should have known about the condition.

The judgments of the trial court and court of civil appeals are affirmed.

Dissenting opinion by STEAKLEY, J., in which GREENHILL, C. J., and BARROW and CHADICK, JJ., join.

STEAKLEY, Justice,

dissenting.

Under established precedents—Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976), and State v. Tennison, 509 S.W.2d 560 (Tex.1974)—the County is not liable here unless it was under the duty to warn Eaton, et al., of the hole in the pavement. It was under this duty only if the condition of the payment was a “special defect” such as an “excavation” or “obstruction.” Section 18(b) of the Tort Claims Act reads:

Sec. 18.
(b) As to premise defects, the unit of government shall owe to any claimant only the duty owed by private persons to a licensee on private property, unless payment has been made by the claimant for the use of the premises. Provided, however, that the limitation of duty contained in this subsection shall not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads or streets, nor shall it apply to any such duty to warn of the absence, condition or malfunction of traffic signs, signals or warning devices as is required in Section 14(12) hereof. (Italics are added).

The majority applied the ejusdem generis rule of construction to the end result, i. e., to a hole in the street, no matter how it came to pass. This, I think, is misplaced. I agree with the recognition by the United States Supreme Court that this rule — that where particular words of description are followed by general terms the latter will be regarded as applicable only to persons or things of a like class — is far from being of universal application, and never is applied when to do so will give to a statute an operation different from that intended by the body enacting it. Its proper office is to give effect to the true intention of that body, not to defeat it. Danciger v. Cooley, 248 U.S. 319, 39 S.Ct. 119, 63 L.Ed. 266 (1919). Of controlling significance is the causative factor implicit in the words “excavation” and “obstruction” used by the Legislature in Section 18(b). Each of these words carries the idea of an overt act, of something having been done by the unit of government of which it would have immediate knowledge and for which it should have to answer. More appropriate, then, is the doctrine of construction, noscitur a sociis, which teaches that the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute; and that where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. An excavation is defined as a cavity formed by cutting, digging, or scooping. Obstruction is defined as a thing that obstructs or impedes; an obstacle, impediment, or hindrance, as in a street, river, or design. Webster’s New International Dictionary of the English Language (2d Ed.) (1961), at 888, 1682.

The Supreme Court of Pennsylvania has written that “To excavate means to make a hole or cavity in, hollow out, scoop, dig or cut a hollow in . .” Rochez Bros. v. Duricka, 374 Pa. 262, 97 A.2d 825 (1953). It has been held that an exposed face of a stone quarry was not an “excavation” within the terms of a statute requiring the erection of good and substantial fences or other safeguards sufficient to prevent persons and animals from falling into shafts or excavations. McDermott v. Kaczmarek, 2 Wash.App. 643, 469 P.2d 191 (1970). See also Orr Ditch & Water Co. v. Justice Court of Reno, 64 Nev. 138, 178 P.2d 558 (1947).

It is even more strained to say that a wear and tear hole in a street is an “obstruction” within the terms of this statute. An obstruction is a hindrance, obstacle, or barrier. Carder v. City of Clarksburg, 100 W.Va. 605, 131 S.E. 349 (1926).

There is no claim or evidence that the County excavated, i. e., made or dug or otherwise created the hole or that any type of barrier or hindrance had been erected by the County. Indeed, the majority in its recitation of the facts recognizes that the hole resulted from pavement age and wear. We know that holes in pavements resulting from normal wear and tear are commonplace. They are of all sizes and may increase in size and depth from day to day. I know no way of determining when a wear and tear hole, which most usually has a small beginning, becomes an “excavation” or an “obstruction.” I know no way of determining how big or how long standing it must be to qualify as such. In my view, an extension of the coverage of the Tort Claims Act to this commonplace condition goes far beyond the terms of Section 18(b).

I therefore dissent in the conviction that this far-reaching expansion of the liability of governmental units is without warrant either in the actual words of the statute or in the legislative intent evinced by these words. My views are in accord with the action of this Court in letting stand the ruling in Sutton v. State Highway Department, 549 S.W.2d 59 (Tex.Civ.App.1977, writ ref’d, n. r. e.).

Dissent joined by GREENHILL, C. J., and BARROW and CHADICK, JJ.


author: DENTON, Justice. DANIEL, J., DANIEL, Justice,

text:
    MANSFIELD STATE BANK, Petitioner, v. Maurice J. COHN, Respondent.
    No. B-7511.
    Supreme Court of Texas.
    Oct. 18, 1978.

      Day & Day, Marshall J. Day, Joe Day, Jr., and Lewis D. Wall, III, Fort Worth, for petitioner.
    Strother, Davis, Stanton & Levy, Linda S. Aland, Dallas, for respondent.
   DENTON, Justice.

The issue presented in this case is whether the defendant, Maurice J. Cohn, was given adequate notice of a trial setting. Suit was filed by Mansfield State Bank against Cohn and two corporations of which he was president, seeking recovery on a promissory note. After a general denial was filed on behalf of all of the defendants, the action against Cohn was severed and later set for trial. The trial court rendered judgment for the bank against Cohn. The court of civil appeals reversed and remanded, holding that notice of the trial setting which was sent to Cohn by the bank’s counsel was insufficient to apprise Cohn that the case had been set for trial. 562 S.W.2d 923. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Mansfield State Bank brought this suit against two corporations and their president, Maurice J. Cohn, on a promissory note and guaranty agreement. Cohn had executed the promissory note and guaranty thereof in his capacity as president of the two corporations. Cohn was also sued in his individual capacity under Tex.Tax.-Gen. Ann. art. 12.14 (1969), since Cohn had knowledge that the corporate charters of both corporations had been forfeited prior to incurring the debts. All of the defendants answered by general denial. In September, 1976, summary judgment against the two corporations was granted to the bank, and the action against Cohn individually was severed for trial. At about the same time, Cohn’s attorney of record filed a motion requesting leave to withdraw as counsel for Cohn.

In October, 1976, counsel for the bank sent by certified mail two letters to both Cohn and his counsel of record. The first letter said:

Re: Mansfield State Bank v.
Maurice J. Cohn
No. 141-40245-76
Dear Mr. Cohn:
It is my understanding that Mr. Dilts has withdrawn as counsel in this cause, and therefore, I am writing you direct. You will please find enclosed a copy of our standard setting letter notifying you that the Bank’s suit against you . has been set for trial for the week of November 1, 1976. I have purposely set this case a month in advance to give you adequate time to retain new local counsel should you deem that desirable.

The second letter was addressed to the district clerk with reference to “Mansfield State Bank v. Maurice J. Cohn, No. 141-40245-76,” and read as follows:

Please set the above numbered and styled cause on the non-jury docket for the week of November 1, 1976.
This request is made in good faith in the belief that Plaintiff will be ready for trial at the time requested. All of Plaintiffs pleadings are now in order or will be at least seven days prior to trial date.
There are no special exceptions or other pre-trial matters which should be presented to the Court in advance of trial. All necessary ad litem appointments have been made. All other attorneys in this cause are being mailed a copy of the request for setting on this date.

The return receipt shows, and Cohn does not deny, that he received these letters. The November 1 trial date was passed, however, because the attorney’s motion for leave to withdraw as Cohn’s counsel was still pending. That motion for leave to withdraw was granted on November 2, 1976, and Cohn received a copy of the order permitting withdrawal. The withdrawing attorney also wrote a letter to Cohn on November 8, informing Cohn that the motion for leave to withdraw had been granted and that the case was not set for trial at that time. On November 11, the bank’s counsel sent the district clerk another request for trial setting identical to the previous one sent to the district clerk, except that the requested trial date was December 27, 1976. Cohn was sent a copy of this letter by certified mail; the return receipt shows, and Cohn does not deny, that he received the letter on November 15. Pursuant to the request letter, the district clerk placed the cause on the trial court’s docket for the week of December 27. No further notice of the setting was requested by or sent to Cohn. The case came on to be heard on December 27, but Cohn made no appearance. After the bank presented evidence, testimony, and argument, the trial court rendered judgment that the bank recover against Cohn on the promissory note. Interest and attorney’s fees were also awarded to the bank.

On January 19, 1977, three weeks after rendition of judgment, Cohn filed a motion to set aside the judgment. He alleged that the letter sent to the district clerk, of which he received a copy, indicated that it was merely a request for a trial setting rather than an actual setting of the case. Therefore, he did not receive adequate notice of the trial setting. After a hearing, the trial court denied Cohn’s motion to set aside the judgment.

On appeal by writ of error, the court of civil appeals reversed and remanded for new trial. The court held that no evidence supported the award of attorney’s fees, which holding the bank does not here attack. With respect to Cohn’s contention that he had not received adequate notice of the trial setting, the court held:

[T]his court recognizes that persons unrepresented by counsel may not realize that the letter requesting a setting in a non-jury case is their only notice that the case is actually being set for trial. Such failure to receive notice of the actual trial date is a denial of due process for a litigant not represented by counsel.

562 S.W.2d at 925. The bank now contends that adequate notice of the trial setting was sent to Cohn under the applicable rules, and that there is no basis for differentiation between litigants represented by counsel and litigants representing themselves.

In Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (Tex.1974), this Court held that no rule required notice to the parties of a trial setting made at the regular call of the docket. Where there is no statute or rule to the contrary, “parties over whom the court has properly obtained jurisdiction are expected to keep themselves informed of the time a case is set for trial and are not entitled to notice of the trial other than the setting of the case on the docket.” In response to that case, Rule 245 was amended and Rule 330(b) was repealed so that Rule 245 is now fully applicable to all district courts and requires ten days notice of a trial setting. The basis of the dissenting writer’s disagreement with the outcome in Plains Growers has been eliminated by Rule 245 as amended. See Morris v. Morris, 554 S.W.2d 792 (Tex.Civ.App.—San Antonio 1977, no writ). Rule 245 now provides:

The court may set contested cases on motion of any party, or on the court’s own motion, with reasonable notice of not less than 10 days to the parties, or by agreement of the parties. Noneon tested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. With respect to a party who had no notice of setting of a contested case for trial, the provisions of Rule 329b governing motions for new trial and finality of judgments shall operate from the time of receipt of notice of rendition of the judgment; provided that the original motion for new trial shall in any event be filed within 90 days from the rendition of judgment.

Thus, ten days’ notice of a trial setting is now required by Rule 245 where the case is set on the motion of one party or on the court’s own motion.

Pursuant to Rule 817, local rules of civil procedure have been adopted in Tar-rant County, where this case was tried. Rule 1 of the Tarrant County rules provides:

Jury and Non-Jury Settings
(a) On the first Monday in each calendar month the judge of each district court shall set for trial during the calendar month following the month in which a request for setting is made, all contested jury and non-jury cases for which setting has been requested by one of the parties, (b) Either at or before the time the written request for setting is made to the District Clerk, a copy thereof must be served upon all counsel of record and upon all parties not represented by counsel.

(Emphasis added). Rule 1 of the local rules and Tex.R.Civ.P. 245 have both been satisfied in this case. Notice was received by Cohn on November 15 for a trial setting on December 27. This is obviously more than ten days notice, in compliance with Rule 245. Also, a copy of the request for setting was sent to Cohn, a party not represented by counsel, at the time the request for setting was made to the district clerk, in accordance with local rule 1. No further notice is required by the local rules, and the form requesting setting which was sent to Cohn by the bank was the same form set out by local rule 1 as a suggested form. We therefore hold that Cohn received proper notice of the trial setting in accordance with both the local rules and the Texas Rules of Civil Procedure.

The bank also asserts that the court of civil appeals erred in holding that the “failure to receive notice of the actual trial date is a denial of due process for a litigant not represented by counsel.” We agree with the bank that no basis exists for differentiating between litigants represented by counsel and litigants not represented by counsel in determining whether rules of procedure must be followed. With respect to a criminal case, the United States Supreme Court has said:

The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with the relevant rules of procedural and substantive law.

Faretta v. California, 422 U.S. 806, 835 n. 46, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel. Stein v. Lewisville Independent School District, 481 S.W.2d 436 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.), cert. denied, 414 U.S. 948, 94 S.Ct. 272, 38 L.Ed.2d 203 (1973).

We also regard the letter requesting a trial setting, a copy of which was sent to Cohn, as sufficient notice of the trial setting. The letter asked the district clerk to set the cause on the nonjury docket for the week of December 27. It is reasonable to assume that if a trial setting is requested from the district clerk, a litigant is put on notice that trial may be on that requested date. Furthermore, in connection with the bank’s first requested trial setting on November 1, the bank sent Cohn another letter stating that the case had been set for trial by the standard setting letter on the requested date. After this November 1 trial date was passed, Cohn should have known, upon receipt of the second setting letter, that the case would actually be set for trial on the requested date. Even though he was a litigant not represented by counsel, Cohn is bound by a proper setting of the case as if he were represented. This should be true especially in this case since the evidence shows that Cohn is himself an attorney living in New York. We hold that the notice of the setting for trial was sufficient.

The judgment of the court of civil appeals, as to the principal debt and interest thereon, is reversed and the judgment of the trial court in favor of the bank is affirmed. The portion of the court of civil appeals’ judgment which denies the bank attorney’s fees is not attacked, and is affirmed.

Dissenting opinion by

DANIEL, J.,

in which

STEAKLEY, J., joins.

DANIEL, Justice,

dissenting.

I dissent only from that portion of the Court’s opinion holding that Rule 245, which specifically requires a trial setting notice of not less than ten days, is satisfied by notice of a mere written request for a setting directed to the district clerk in accordance with local rules adopted by the Tarrant County District Courts pursuant to Rule 817.

The Court accurately states that “ten days’ notice of a trial setting is now required by Rule 245 where the case is set on the motion of one party or on the court’s own motion.” (Emphasis supplied.) Then, without recognizing any difference between an actual trial setting made by the court in accordance with Rule 245, and a motion filed with the district clerk requesting a trial setting under Tarrant County local rules, the majority holds that notice of the latter was sufficient compliance with the positive notice of setting requirement of Rule 245; and this, even though no notice was given to the defendant as to whether or not the setting was granted for the week requested. I particularly disagree with the following portion of the majority opinion:

“We also regard the letter requesting a trial setting, a copy of which was sent to Cohn, as sufficient notice of the trial setting. The letter asked the district clerk to set the cause on the non-jury docket for the week of December 27. It is reasonable to assume that if a trial setting is requested from the district clerk, a litigant is put on notice that trial may be on that requested date. . . . ” (Emphasis supplied.)

Rule 245 was intended to leave no room for assumptions or “may be so” speculation as to the time for which the trial of a contested case is actually set by the court. It speaks not of notice of requests for future settings which may or may not be made, but only of “reasonable notice of not less than 10 days to the parties” of actual settings theretofore made by the court. There is a distinct difference between a trial setting and a request for a setting. This is the main difference between Rule 245 and the request provisions of the Tar-rant County local rule. While Rule 245 applies to notice of actual settings already made, Section (b) of the Tarrant County local rules applies to requested settings to be made in the future for jury or non-jury weeks. This local rule of the Tarrant County District Courts was effective March 1, 1970, more than six years prior to the effective date of the present wording of Rule 245. A full reading of the local rule indicates that its purpose is to assist the courts and the parties in getting pending cases docketed for future jury or non-jury weeks. Nowhere in the local rules does it appear that the requirement for notice of “a written request for setting” was intended to serve as a notice that the court had actually set the case for a particular date or week. This seems to be clear from the following provision of Section (c) of the Tarrant County Rules:

“. . . Nothing herein ordered shall preclude continuation of the present practice of setting contested non-jury cases for trial by giving the required ten (10) days written notice to the opposing party of the week of such setting. Non-jury cases may be set each month for both jury and non-jury weeks by giving such notice to the opposing party or his attorney of record and furnishing a copy of such notice to the clerk of the court. »

It is undisputed that the defendant had no notice that his case had been actually set for trial, as distinguished from the notice of a letter requesting that a setting be made for a certain week. Therefore, under the plain wording of Rule 245, his motion for new trial was timely filed.

The effect of the majority opinion is to read Rule 245 as though it required “either notice of ten days of a trial setting or of a written request for a setting filed with the district clerk under local rules.” As long as this interpretation prevails, it is suggested that the rule be rewritten accordingly so that no one who receives a copy of a written request for a setting under local rules will mistakenly rely on the present wording of Rule 245 as requiring that he receive any further notice of a day or week when his case has been actually set down by the court for trial.

STEAKLEY, J., joins in this dissent.

      . All citations to Rules are to the Texas Rules of Civil Procedure unless otherwise noted. Rule 817 authorizes district courts to adopt local rules which are “not inconsistent” with the Rules promulgated by the Supreme Court.

      . As noted by the majority, the present wording of Rule 245, effective January 1, 1976, was the result of dissatisfaction with the outcome of Plains Growers, Inc. v. Jordan, 519 S.W.2d 633 (1974), in which it was held that no rule promulgated by this Court required notice of a trial setting made on the motion of a party at the regular call of the docket. The repeal of Rule 330(b) and amendment of Rule 245 were specifically designed to require such notice, and to provide for later filing of motions for new trial by “a party who had no notice of setting of a contested case for trial” as required by the amended Rule 245. (Emphasis supplied.)

      .Local Rules of District Courts of Texas, Texas Civil Judicial Council (1974), page 277. From this compilation of local rules, it appears that practically all of the larger counties had a similar rule prior to April 15, 1974.

      . Id., 278-279.

      . The applicable portion of Rule 245 reads: “With respect to a party who had no notice of setting of a contested case for trial, the provisions of Rule 329b governing motions for new trial and finality of judgments shall operate from the time of the receipt of notice of rendition of the judgment . . .”


author: JOHNSON, Justice.

text:
    Anna Wilson STRADT, Petitioner, v. FIRST UNITED METHODIST CHURCH OF HUNTINGTON, Respondent.
    No. B-7542.
    Supreme Court of Texas.
    Nov. 1, 1978.
    Rehearing Denied Dec. 6, 1978.

      Robert L. Flournoy, Lufkin, for petitioner.
    William Drew Perkins, Lufkin, for respondent.
   JOHNSON, Justice.

The issue to be resolved in this lawsuit is a “no evidence” point dealing with a parol partition of land. Suit was instituted by Anna Stradt, plaintiff in the trial court and petitioner here, for partition of a 177-acre tract of land and an accounting. The First United Methodist Church, defendant below and respondent here, filed a cross action in the nature of a trespass to try title suit. Upon trial to a jury, the trial court rendered a take-nothing judgment against Mrs. Stradt and further decreed that full title to the land be awarded to the Church. The court of civil appeals affirmed that judgment. 567 S.W.2d 810. Mrs. Stradt argues in her appeal to this court that there is no evidence to support the award to the Church of title to the property. We agree with this contention and accordingly reverse the judgments of the court of civil appeals and the trial court.

The essential facts of the case are these: Anna Wilson Stradt is the daughter of Dr. H. M. Wilson and Anna D. Wilson, of Huntington, Texas. Mrs. Wilson died intestate in 1912, being survived by her husband, Dr. H. M. Wilson, and two children, Anna and Preston (commonly known as “P.R.”). During their marriage, Dr. and Mrs. Wilson acquired as community property approximately 2,100 acres of land. The parties agree that since Mrs. Wilson died intestate, her children, Anna and P.R., each received a one fourth undivided interest in the 2,100 acres, Dr. Wilson retaining the other one half undivided interest. Dr. Wilson subsequently remarried.

In 1946 Dr. Wilson conveyed six separate tracts of land, totaling approximately 1,600 acres, to Mrs. Stradt and P.R. for a stated consideration of $2,500 and “for the love and affection, I do have for my son and daughter.” The deed does not recite “other good and valuable consideration,” and there is no indication that Dr. Wilson received anything other than the consideration stated above. The 177-acre tract of land, which is the only property here in controversy, was not included in the 1946 deed.

Dr. Wilson was a member of the Baptist Church, but his second wife was a member of the Methodist Church. On November 30, 1949 Dr. Wilson conveyed by separate deeds 275 acres of land to the First Baptist Church of Huntington and the 177 acres of land now in suit to the First United Methodist Church of Huntington. The deeds in each instance purported to convey full title to the land. Mrs. Stradt and P.R. did not join in these deeds.

Mrs. Stradt first learned of the 1949 conveyance by her father of the 177 acres to the Methodist Church sometime in the early 1950’s. In 1956 she paid the back taxes on the property for her one fourth interest in the land and continued to pay the taxes on her interest until 1976, the time of this suit. The Church has not been as regular, having been delinquent from 1950 through 1974. In 1961 P.R. deeded his one fourth interest in the 177 acres to the Methodist Church, but reserved his interest in the oil, gas, and minerals. At no time has Mrs. Stradt conveyed her interest in the 177 acres to anyone.

On December 2, 1976 Mrs. Stradt filed the instant suit for an accounting and for a partition of her one fourth interest in the land. The Church filed a cross action in the nature of a trespass to try title suit, claiming sole title to the 177 acres under various statutes of limitations. The Church offered no evidence of limitation title and no special issue was requested or submitted on that theory.

Instead, the Church tried the case on the theory of parol partition, the argument being that the 1946 conveyance of the 1,600 acres by Dr. Wilson to Mrs. Stradt and P.R. was in full settlement of their interest in their mother’s estate. If that were the case, then Mrs. Stradt and P.R. would not have had any interest left in the 177-acre tract at the time of the 1949 conveyance from Dr. Wilson to the Church. Over Mrs. Stradt’s objection, the trial court submitted two special issues to the jury on the question of parol partition. Affirmative answers to both issues resulted in the judgment that Mrs. Stradt take nothing and that the Church be awarded full title to the land. The court of civil appeals affirmed in all respects.

Mrs. Stradt’s sole point of error before this court is that there was no evidence adduced at trial to support either the submission of or the jury answers to the special issues. Counsel for Mrs. Stradt agreed in oral argument that the issues, answers, and judgment would be correct if there was some evidence to support the jury findings that a parol partition had occurred.

In deciding a “no evidence” point, we must view the evidence in its most favorable light in support of the verdict, considering only the evidence and inferences that support the jury findings. Lucas v. Hartford Acc. & Indem. Co., 552 S.W.2d 796, 797 (Tex.1977). See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 362-65 (1960). After reviewing the record as a whole, we are of the opinion that Mrs. Stradt is correct; there is no evidence of a parol partition. Consequently, the judgments of the trial court and the court of civil appeals must be reversed.

The court of civil appeals and the Church rely on essentially the same facts to show a parol partition. First is the fact that Mrs. Stradt and P.R. accepted and made use of the 1,600 acres deeded to them by their father in 1946. It is true that conduct such as taking possession of land by the respective parties to a parol partition may be evidence of the fact of partition. Reynolds v. Mangrum, 250 S.W.2d 283 (Tex.Civ.App.—Eastland 1952, no writ); Robinson v. O’Connor, 181 S.W.2d 935 (Tex.Civ.App.—El Paso 1944, writ ref’d w. o. m.); Edwards v. Edwards, 52 S.W.2d 657 (Tex.Civ.App.—Austin 1932, writ ref’d). The evidence does show that Mrs. Stradt and P.R. accepted the 1,600 acres, but it does not show that they relinquished their claim to the 177-acre tract. If anything, the proof shows just the opposite: they did not relinquish their claim. Further, there is no evidence indicating what actions, if any, Dr. Wilson took with regard to the 177 acres before his conveyance to the Church in 1949. The record does not disclose whether Dr. Wilson took possession of the land, barred Mrs. Stradt and P.R. from use of the land, indicated to anybody that he believed himself to be sole owner of the land, or anything else. As it stands, the evidence is entirely consistent with the position espoused by Mrs. Stradt, that she merely accepted the 1,600 acres she had purchased and received from her father. It is not proof of a parol partition of the 177 acres.

Secondly, the court of civil appeals relied on the fact that Mrs. Stradt never denied the Church’s contention of a parol partition, even though she did testify at trial. It is urged that her silence in itself could support an inference by the jury that the Church’s assertions were true. This misconceives the burden of proof in a trespass to try title suit. It was not Mrs. Stradt’s burden to prove there was not a parol partition; the Church had the burden to prove there was one. If the Church failed to sustain this burden, then it was not incumbent upon Mrs. Stradt to deny the existence of something that had not been proved. Consequently, her silence does not constitute proof of a parol partition.

Thirdly, the court of civil appeals emphasized the fact that Mrs. Stradt waited nearly three decades before asserting her claim to the land, at which time she was the only member of the family still living. We would disagree with this characterization of the record. While it is true that Mrs. Stradt did not file suit until 1976, she did pay taxes on the land for more than twenty-five years. As noted in her brief, it is common to own property jointly with others and one does not lose his rights thereunder for failure to sue for partition. In this connection, it should be noted that her brother, P.R., obviously felt that he continued to own his interest in the land; otherwise, he would not have deeded the land to the Church in 1961 and retained an interest in the oil, gas, and minerals. It cannot be said that the Church’s claim of ownership to the land went unquestioned for three decades.

Finally, the Church argues that the jury could have drawn upon its common experiences of everyday living and decided that Dr. Wilson was seeking to “settle with his heirs and seek pennance [s/c] from his Maker” as he approached the end of his life. This might be true insofar as Dr. Wilson was concerned, but the subjective intent of one party is not proof of an agreement between several parties to partition land.

When "viewed in its most favorable light, the evidence at best shows that Dr. Wilson intended a partition. There is no evidence showing that Mrs. Stradt and P.R. either knew of or consented to this intended partition. A voluntary partition of land must be based on the agreement of all parties with a possessory interest thereto and cannot be the result of a unilateral decision. State v. Kirkpatrick, 299 S.W.2d 394, 397 (Tex.Civ.App.—Dallas 1957, writ ref’d n. r. e.); Brito v. Slack, 25 S.W.2d 881 (Tex.Civ.App.—El Paso 1930, no writ); Turner v. Pope, 137 S.W. 420, 422 (Tex.Civ.App.—Galveston 1911, writ dism’d). See also Condra v. Grogan Mfg. Co., 149 Tex. 380, 233 S.W.2d 565, 567 (1950). What the evidence in this case more nearly shows is a conveyance in 1946 of the 1,600 acres from Dr. Wilson to his children, which left unaffected their respective interests in the 177-acre tract of land. See Zanderson v. Sullivan, 91 Tex. 499, 44 S.W. 484 (1898); Hyde v. Hyde, 212 S.W.2d 226 (Tex.Civ.App.— Beaumont 1948, no writ).

The Church has raised a “contingent” point of error complaining of an evidence ruling by the trial court. We do not consider this point to be properly before us.

Since there was no evidence proving a parol partition, the trial court erroneously submitted special issues on that matter to the jury and erroneously rendered judgment on the basis of the jury answers to those issues. Accordingly, we reverse the judgments of the trial court and the court of civil appeals and render judgment that the Church take nothing in its trespass to try title claim. It further appears that Anna Stradt is entitled to a partition and an accounting, which will require further actions in the trial court. Therefore, Mrs. Stradt’s cause is remanded to the trial court for further proceedings in accordance with this opinion.

      . Over the years, the Church profited from the sale of timber off the land. It is for this that Mrs. Stradt seeks an accounting.

      .The opinion of the court of civil appeals states that Mrs. Stradt filed the trespass to try titie suit. This was in error and may account for the court’s apparent misplacement of the burden of proof.

      .The special issues submitted were:

        (1) “Do you find from a preponderance of the evidence that on July 12, 1946, H. M. Wilson conveyed certain lands to the Plaintiff herein, Anna Elizabeth Wilson Stradt, in full settlement, if any, of Mrs. Stradt’s interest in her mother’s estate?”
      (2) “Do you find from a preponderance of the evidence that the Plaintiff herein, Anna Wilson Stradt, accepted such lands in settlement, if any, of her interest in her mother’s estate?”

      . It should be noted in this regard that the Church called Mrs. Stradt as its own witness under the adverse party rule. No better opportunity could have presented itself for the Church to prove its theory of parol partition than through this witness. The Church having failed to develop this testimony on direct examination, Mrs. Stradt’s attorney was not required to disprove it on cross-examination.