text:
    Arthur MITCHELL, Appellant, v. Thomas Calvin RAMFIELD, Appellee.
    No. 12257.
    Court of Civil Appeals of Texas, Austin.
    May 14, 1975.

      Kirk Patterson, Arthur Mitchell, Mitchell & Stewart, San Antonio, for appellant.
    Hume Cofer, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellant brought suit in the district court of Bell County praying that a writ of mandamus issue compelling the County Auditor, Thomas Calvin Ramfield, to deliver and countersign warrants paying appellant for legal services rendered. The court refused to issue the writ and appellant has prosecuted his appeal to this Court. We affirm the judgment of the trial court.

Appellant was employed by the Bell County Commissioners’ Court to prosecute or assist in the prosecution of a lawsuit to determine if appellee, Thomas Calvin Ram-field, was qualified to hold the position of Bell County Auditor. Appellant contends that pursuant to such employment, he prepared, filed and assisted the County Attorney in the prosecution of a suit in the nature of quo warranto which was a companion case appealed to this Court and is being handed down this day bearing our number 12,256, and styled State of Texas, et al. v. Ramfield, 523 S.W.2d 453.

Appellant further contends that despite such services performed by him pursuant to his employment agreement, appellee, as County Auditor, has failed and refused to approve any payment of county funds to appellant for his services rendered to date, including the agreed retainer of $500.00.

We hold that the trial court was correct in refusing to issue the writ. In so refusing, the court made the following findings of fact which have not been challenged by appellant: “No evidence was introduced to show the number of hours of legal services performed by the plaintiff; the total amount claimed to be due the plaintiff at the time of trial for services rendered; that the Commissioners’ Court has approved or ordered the issuance of warrants on the Bell County general fund payable to plaintiff, or that any such warrant or warrants had been issued and delivered to plaintiff; or that any warrant or warrants had been delivered to Ramfield for countersigning which he had refused to sign.”

The trial court then concluded as a matter of law that the employment of the plaintiff (appellant) was not in the form prescribed by law, that plaintiff had failed to show a clear legal right to the writ, that he has a plain, effective, and adequate legal remedy, and that to grant mandamus would be to try piecemeal his cause of action against Bell County for compensation for services rendered and to be rendered.

We need not explore every ramification of the trial court’s findings of fact and conclusions of law. We need only point out that in order to recover money from Bell County, appellant must state the amount of the claim which he asserts and that matter, if any, must be established in another suit. The evidence disclosed in this suit for mandamus demonstrates that this matter was not determined. Consequently, there is no lawful, final, adjudicated determination as to what amount is due appellant. As stated in Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138 (1939), the function of mandamus is to execute, not to adjudicate. Also see Mitchell and Gilbert, Texas Practice, Vol. 14, Sec. 3495, pp. 201-203.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Ardale Madeline DENBO, Appellant, v. Samuel E. BUTLER, Appellee.
    No. 16479.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 15, 1975.

      J. Leonard Got sdiner, Ranseler O. Wyatt, Houston, for appellant.
    John L. Pierce, II, Navasota, for appel-lee.
   PEDEN, Justice.

Ardale Madeline Denbo filed this suit to contest the will of her deceased sister, Betty Butler, in the Grimes County Court, pleading only the issues of undue influence and testamentary capacity. The will was admitted to probate, and Mrs. Denbo appealed to the district court, where a jury found that the decedent possessed testamentary capacity and that her will was not procured by undue influence of the proponent, Sam Butler, her surviving husband. Judgment was again entered in favor of the proponent, and the contestant has perfected this appeal.

Appellant’s first point of error is that the trial court erred in excluding the testimony of Dora Winslow, who was a surviving sister of the decedent and of the contestant, in response to an objection based on Article 3716, Vernon’s Ann.Texas Civil Statutes, the Dead Man’s Statute. That statute provides:

“In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Mrs. Winslow was one of the contestants of the will in the county court, but her appeal to the district court was dismissed because she failed to file an appeal bond.

Appellant argues first that Mrs. Wins-low’s testimony was improperly excluded because she was not one of the parties within the meaning of Art. 3716. This statement now found at 19 Tex.Jur.2d 56 was cited with approval in Whatley v. Whatley, 169 S.W.2d 989 (Tex.Civ.App.1943, writ ref.) :

“. . . the term ‘parties’ embraces not only parties of record, but also all persons who have a direct and substantial interest in the matter litigated. A person has been said to have a disqualifying interest within the meaning of this rule, where he will be bound by any judgment which may be rendered under the pleadings.”

In that case the testimony of a witness concerning a transaction with the decedent was held to have been properly excluded, even though he was not a party to the suit, because he was a devisee who was directly interested in the matter being litigated, citing Simpson v. Brotherton, 62 Tex. 170:

“ ‘So the object of the act, excluding parties from testifying as to transactions with deceased persons, would be defeated by allowing one to testify to such transactions who was as fully interested in the result of the suit as any of the persons named as parties upon the record.’ ”

In our case Mrs. Winslow’s testimony was properly excluded under the Dead Man’s Statute because she would inherit from her deceased sister by the laws of descent and distribution if the will should be set aside. Johnson v. Poe, 210 S.W.2d 264 (Tex.Civ.App.1948, writ ref. n. r. e.).

Appellant also argues under this point that appellee had waived any objection concerning any conversation between Mrs. Winslow and the decedent by submitting and filing interrogatories directed to Mrs. Denbo concerning conversations between Mrs. Denbo and the decedent.

It was held in Burris v. Levy, 302 S.W.2d 171 (Tex.Civ.App.1957, writ ref. n. r. e.), that if a party calls upon his adversary to make admissions under Rule 169, which admissions relate to statements by or transactions with the deceased, otherwise barred by the provisions of Art. 3716, he has called such adverse party to testify concerning such transactions or statements and cannot thereafter object to further testimony by such party under the bar set forth in the Dead Man’s Statute; developing a matter within the bar of the statute by deposition serves to waive the bar and obtaining of such matter by means of Rule 169 has the same effect, (emphasis added) The well-settled rule based on the taking of a party’s deposition was thus applied to admissions under Rule 169; we perceive no basis for holding that it does not apply to interrogatories made under Rule 168.

However, the express waiver provision in Art. 3716 is that “. neither party' shall be allowed to testify against the others as to any transaction with, or statement by, the testator . unless called to testify thereto by the opposite party: . . The record does not show that Mrs. Winslow was called by the proponent to testify in person, by deposition or by interrogatories. The fact that a party questions one adverse party regarding a transaction and thereby waives the statute as to such witness, does not constitute a waiver of the statute as to other adverse parties who are not so examined. Associate Justice Ruel Walker, The Dead Man’s . Statute, 27 Tex.Bar.Journal 315, citing Jackson v. Mumford’s executor, 74 Tex. 104, 11 S.W. 1061 (1889).

Appellant’s second point is that the trial court committed fundamental error by wrongfully placing the burden of proof on her. The appellant’s complaint under this point is that the district judge required her to commence the presentation of evidence at the beginning of the trial instead of requiring the proponent to do so. The record reflects that she was the first to offer evidence, but it does not show that she objected or that she was not willing' to go first, so the point was waived.

We believe that she is correct in saying that the proponent should have been the one to commence the presentation of evidence in the case, but the fact that the contestant did so does not constitute fundamental error. Procedural errors not adversely affecting the interest of the public generally and those made in cases where the record shows that the court had jurisdiction of the subject matter are not held to constitute fundamental error. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947) and 3 Tex.Jur.2d Rev. 430-431, Appeal and Error — Civil Cases § 102.

Appellant’s fifth point of error is that the district judge erred in overruling her motion for an instructed verdict because the proponent did not introduce into evidence 1) the application to probate the decedent’s will, 2) proof that she had died, 3) the affidavits of the witnesses to the execution of the will and 4) the County Court’s decree admitting the will to probate.

The motion for instructed verdict was filed after both sides had rested. The record shows that only the first of these four items was not introduced in evidence. The fourth item, the county court decree admitting the will to probate was introduced by the appellant.

The appellant was not entitled to an instructed verdict in the district court by reason of the proponent’s failure to introduce in evidence his application from the county court to have the will admitted to probate.

The contestant was the appellant in the district court, as she is here, so she had the burden of complying with Rule 336, Texas Rules of Civil Procedure, by filing with the district clerk a true copy of the necessary proceedings from the county court. The record on appeal was before the district judge, and the proponent was not obliged to introduce in evidence a copy of his application to probate the will.

The jurisdiction of the district' court, after the appeal, was appellate only and was confined to a trial of the issues made in the probate court. Marshall v. E. R. Hobert’s Estate, 315 S.W.2d 604 (Tex. Civ.App.1958, writ ref.). We have noted that appellant’s petition filed in the county court raised only the issues of testamentary capacity and undue influence, and she does not contend that she raised any other issues in that court.

In point of error number 3 the appellant says that the trial court erred in refusing to explain to the jury the reason why her brothers and sisters (whose appeal to the district court had been dismissed for failure to file an appeal bond) did not join as contestants in the case. Appellant refers to Rule 182-a, and argues that the same reasoning should apply to this circumstance. Rule 182-a provides:

“Subject to appellate review for an abuse of discretion, the trial court shall in a proper case, where Article 3716 prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any transaction or conversation with, or statement by,'a deceased person, unless he is called to testify thereto by the opposite party.”

Rule. 182-a was designed to minimize the undesirable effects of Article 3716 and decisions which had held that it was reversible error for the trial judge, counsel or witnesses to explain the inhibitions of the statute to the jury. See General Commentary, Rule 182-a, Vernon’s Annotated Texas Rules of Civil Procedure. We think the reasoning on which Rule 182-a is based does not apply here. An explanation of the failure of the contestant’s brothers and sisters to join her in the suit in the district court would not involve the danger of causing reversible error. We hold that the trial court did not err in refusing to give the instruction. In any event, such instruction was not submitted in writing as required by Rule 279, so had there been error, it was waived. State v. Harrington, 407 S.W.2d 467 (Tex.1966).

Appellant’s fourth point complains that the trial court should have granted her motion for mistrial because of certain improper jury argument made by counsel for the proponent. The record does not contain the arguments made to the jury, so nothing is preserved for appellate review on this point.

Having overruled all of the appellant’s points of error, we do not reach the appel-lee’s counter-points.

Affirmed.


text:
    COASTAL INDUSTRIAL WATER AUTHORITY, Appellant, v. TRINITY PORTLAND CEMENT DIVISION, GENERAL PORTLAND CEMENT COMPANY, Appellee.
    No. 16454.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    April 3, 1975.
    Rehearing Denied May 1, 1975.

      Jonathan Day, Fred Spence, Houston, for appellant.
    William H. White, Grant Cook, Houston, for appellee; Reynolds, White, Allen & Cook, Houston, of counsel.
   PEDEN, Justice.

Eminent domain proceeding. Appellant condemned appellee’s Tract A, containing 4.4615 acres, and Tract B, containing 161.-3366 acres. The condemnee appealed from the Special Commissioners’ award of $788,840 and obtained a judgment for an additional $2,537,473.74.

Appellant presented 76 points of error, which may be grouped into several large categories. Its first thirteen points complain of the admission of evidence as to the value of clay deposits on Tract B. It was undisputed that a portion of Tract B had a substantial deposit of clay suitable for the manufacture of type 1 cement. The appellee is engaged in the cement manufacturing business and since 1927 has continually used clay from Tract B in its Houston plant.

The appellee called only two witnesses who testified as to value. One was Mr. George L. Reed, a real estate appraiser. The other was Mr. Alden McElrath, a mining geologist, who qualified as an expert in evaluating raw materials used in manufacturing cement. He testified in detail as to the results of his tests to determine the quality and quantity of the clay in Tract B. He described the location of the clay, the availability of required transportation and he obtained from the con-demnee information about the cost of getting it to the market, which includes mining, transportation and processing costs. McElrath testified that he considered the cost of replacing the lost clay after the land was condemned, and stated that in his opinion the value of the clay in place as of August 14, 1970, the date of taking, was $1,458,282. He said he was not an appraiser and was not testifying to the market value of the land or of the clay, only its value in place. On cross-examination he stated that the value of the clay in place was $1,052 per cubic yard and that his survey showed there were 1,386,202 cubic yards of recoverable usable clay on Tract B, so its total value was $1,458,282.

Appellant complains that this testimony was inadmissible because it involved a computation of quantity times unit price, and because Mr. McElrath took into consideration the cost of extraction and' of transporting the clay after it was removed from the ground in determining the value of the clay in the ground.

We do not agree with the appellant’s position on this matter. A few Texas cases have discussed this matter. In Brazos River Authority v. Gilliam, 429 S.W.2d 949 (Tex.Civ.App.1968, writ ref. n.r.e.) the court stated at page 952:

“Mineral deposits, when taken as a part of the whole property condemned are proper to be taken into consideration in a determination of the whole value. Brazos River Conservation and Reclam. Dist. v. Costello, 169 S.W.2d 977, 988 (Eastland Civ.App., 1943, writ ref. w.o. m.). It is proper that evidence be heard and considered in eminent domain cases of the value of sand and/or gravel as it lies in its natural state in the ground. Reilly v. State, 382 S.W.2d 116 [Tex.] San Antonio Civ.App.1964, writ ref’d., n.r.e.).”

The court further stated in that case that for an expert witness to assume a value per cubic yard for the gravel in place and to multiply it by the number of cubic yards shown existence on the land “and to be examined and cross-examined upon such calculations as an element in opinion evidence as to value of the realty upon which such had consequential effect is in our opinion procedurally proper.”

We quote from 4 Nichols on Eminent Domain (rev. 3rd ed.1974), Section 13.22 beginning at page 13-95:

“ . . . The rule is widely prevalent in this country that the existence of mineral deposits in or on land is an element to be considered in determining the market value of such land .
“[T]he rule has been correlatively stated that the value of such mineral deposits cannot be determined independently of the land of which it is a part. The land taken must be valued as land, with the factor of mineral deposits given due consideration. In determining just compensation to be paid to the owner, it is not permissible to aggregate the value of the land and value of the deposit. Thus, the value as stone land suitable for quarrying — but not the value of the stone separate from the land — is a proper subject of consideration, both by the witnesses and the jury in fixing the amount of just compensation to be awarded. The value of the land is not measured by such facts. The stone is a component part of the land. However, while the profits, price or value of the minerals, taken separately, may not be considered, yet the value, extent and quality of such minerals as exist upon the land may be considered. If the extent and quality and value of the stone as it lies on the land may not be considered, there would be no way by which the value of the land with the minerals could be shown. All legitimate evidence tending to establish value of the land with the minerals in it is permissible. This is not to say that such minerals are to be separately evaluated, but that consideration may be given to the quantity of the mineral that can be extracted and to the value thereof; purely as evidence for arriving at the value of the land. If a piece of land contains valuable improvements, those improvements apart from the land may not be considered. But certainly the character, nature, and extent of the improvements (and the revenue derived therefrom) are as essential to be considered in arriving at the value of the land as the land itself or the uses to which it may be put. The admissibility of such evidence lies in the sound discretion of the court.
“In a leading case the law was summarized as follows:
“ ‘(1) that a landowner in dealing with a parcel of land on which there is a mineral, timber or like substance may not introduce expert testimony by which the expert multiplies the gross material present by the market value per unit thereof and thereby arrives at a figure which purports to be fair market value for the parcel;
‘(2) that the landowner may not by expert testimony capitalized the present or future value of a business enterprise and thereby arrive at fair market value; that rental value may, however, be capitalized ;
“ ‘(3) that the landowner is entitled to have an expert or lay witness describe the commodity or substance on the land, the quantity thereof, the going price thereof as factors only, upon which the expert may in part base his value as to the fair market value of the parcel in question; that the landowner is not entitled to present testimony as to the fair market value of the mineral or timber or other substance apart from the value of the land. * * * In other words, a clear distinction must be drawn between what is presented and considered as a factor underlying the expert’s opinion as contrasted with opinion as to the fair market value of the substance, timber or mineral itself, apart from the land.
“ ‘(4) that the landowner must make a showing of some sort of market, poor or good, great or small, for the commodity in question before the quantity and price of the commodity or substance may be presented to the jury to be used as a factor in the expert’s opinion testimony;
“ ‘(5) that since the inquiry is essentially one as to what would have been the negotiations between the willing buyer and the willing seller, there may be taken into consideration by the expert only those factors which would have been reasonably so considered;
“ ‘(6) that except in cases where the matter is so clear that it becomes a question of law it is generally a question for the jury to determine whether the proposed factor underlying in part the opinion of the expert as to the fair market value, is one which would have reasonably been considered by the willing buyer and the willing seller ;
“‘(7) • • •
“ ‘(8) . . . ’
“United States v. Land In Dry Bed of Rosamond Lake, (D.C.Cal.) 143 F.Supp. 314.”

Mr. McElrath’s testimony gave his opinion as an expert as to the value in place of one element of the value of the property. The offer of Mr. McElrath’s testimony was so limited by the witness himself, the appellee, by the court in oral instructions at the time it was offered and at the close of the case in the written instructions in the charge to the jury.

The amount of extractable clay on the property was not questioned by the appellant. The appellant attached the value of $1,052 per cubic yard which Mr. McElrath concluded the clay in place was worth because Mr. McElrath considered the cost of excavation, transportation, and replacement of the clay, which are costs incurred in using the clay as a commodity. There was no testimony before the jury as to the figures which Mr. McElrath assigned to these elements, but he stated these were factors he considered in calculating the value of the clay in place.

In connection with a bill of exception, which we will later discuss, McElrath testified that he used two exhibits prepared from the condemnee’s invoices and ledgers. They show that in computing the value of clay in place the amount the condemnee paid its suppliers for clay was reduced by the amount the condemnee would have spent in excavating and transporting its clay from the subject property to its cement plant. We think it not improper to deduct such expenses.

We hold that if the quantity of a mineral deposit can be accurately determined, an expert may testify to his opinion of the value in place of a cubic yard of the material and multiply it by the number of extractable cubic yards to determine the value of the mineral in place. This is admissible as an element of the market value of the realty.

In its eighth point the appellant complains about the trial court’s refusal to strike the testimony of Mr. McElrath that the clay had a value of $1,458,292 when it was discovered in appellee’s exhibits 11, 12, 14, 15 and 16 that he had considered, in evaluating the clay, the price paid for it far past the date of taking and into the year 1972 (and did not apply a capitalization factor).

After testifying in detail as to the quantity and quality of the clay, McElrath testified that he had not been furnished with the statistical information he would need before he could give an opinion as to the value of the clay in place.

The next day he testified, as we have noticed, that in his opinion the usable clay in place had a value of $1,458,292 on the date of taking. On cross-examination he said he had made his calculations as to the value of the clay in place on the previous night, based on background information he had received from the attorneys for the condemnee, including cost of transportation and cost of replacement two factors that entered into his opinion.

The condemnee made a bill of exception, contending that because opposing counsel had brought out that McElrath got his background material as to value from con-demnee’s lawyers, it was entitled to show that such background material and supporting data had come from company records and to show what those records reflect.

McElrath testified in the bill of exception that the figures in exhibits 11 and 12 plus company invoices and ledgers were ones that he used to arrive at his opinion of the value of the usable clay, the quantity of which he had earlier calculated.

Condemnee’s exhibit 12 was offered as part of the bill of exception. It was:

RE-CAPITULATION
TRINITY PORTLAND DIVISION — GENERAL PORTLAND CEMENT COMPANY COSTS TO EXCAVATE CLAY FROM SUBJECT PROPERTY AND TRANSPORT TO GENERAL PORTLAND PLANT, 1965 -1970 (AUG.)
Year Total Production Excavation per Unit Price Transportation per Unit Cost Total per Unit Cost
151,313 yds. 1965 $.1890 $.4000 $ .5890
155,074 1966 .2153 .4000 .6153
178,215 1967 .1768 .4000 .5768
183,768 1968 .1700 .3854 .5554
161,124 1969 .2500 .4000 .6500
122,951 1970 .6600 .5000 1.1600
(8 mos.)
Average costs (1965-70) £.2768 £.4142 $ .6910
The condemnee used the excavation and transportation figures from its exhibit 12 to compute the amounts shown on its exhibit 11, which were:
RE-CAPITULATION
CLAY PURCHASED BY TRINITY PORTLAND DIVISION-GENERAL PORTLAND CEMENT COMPANY, SEPT. 70 - SEPT. 72
Cu. Yards Unit Cost Per Cu. Yd. Unit Net Cost (3) Total Net Cost
38,600 $ .80 (1) $ .5232 $ 20,195
36,000 1.00 (1) .7232 26,035
52,000 1.84 (2) 1.1490 59,748
12,800 1.85 (2) 1.1590 14,835
36,000 1.86 (2) 1.1690 42,084
10,000 1.87 (2) .1.1790 11,790
11,000 1.89 (2) 1.1990 13,189
9,000 1.91 (2) 1.2190 10,971
15,760 1.92 (2) 1.2290 19,369
12,000 1.93 (2) 1.2390 14,991
12,000 1.96 (2) 1.2690 15,228
42,700 1.97 (2) 1.2790 54,690
288,020 $303,125
Net cost per cu. yd. = $303,125/288,020 = $1,052
Notes
(1) Including excavation costs only
(2) Including excavation and transportation costs
(3) Exclusive of General Portland historic excavation and transportation costs

McElrath’s testimony that the value of the clay in place was $1,052 per cubic yard on August 14, 1970, is the same figure that appears as the “Net cost per cu. yd.” as the end result of the calculations in exhibits 11 and 12. In those exhibits it was obtained by taking the average of the rising prices the condemnee paid for clay during a little more than two years after August 14, 1970, rather than by taking the price ($.80) paid at the time of taking of the property. Exhibit 14 shows that $.80 per cubic yard was paid in September, 1970, and in each succeeding month through December, 1970, when the price rose sharply.

It thus appears that McElrath’s value testimony may well have been calculated on an incorrect and improper basis. He was not asked to explain the $1,052 figure. The calculations that went into preparing exhibits 11 and 12 were not entirely clear. In appellant’s motion to strike the value testimony of the witness, the court was inaccurately advised that the condemnee had used in its calculations “the cost of clay from 1965 clear up to 1972 . . . ”; in fact, it used the cost from September 1970 to September 1972.

In ruling on the motion the trial judge expressed a lack of competence to determine how the value of clay in place should be fixed and suggested that the way to determine such issues is to listen to the testimony of experts; that it is a-matter to be taken up on cross-examination to test the reasoning of the witness. Appellant’s counsel did not thereafter cross-examine the witness as to his use of the exhibits in evaluating the clay.

Trial courts are vested with broad discretion in determining whether witnesses are qualified to testify as to the value of real or personal property, and their decisions will not ordinarily be disturbed unless an abuse of that discretion is shown. Under this record we cannot say the trial judge abused his discretion in overruling the motion made by the appellant to strike the testimony as to value.

Appellant contends that if a multiplication approach is allowed a capitalization rate should be applied to the value of the clay in place to arrive at present value, because a witness testified it might take fourteen years to mine the clay at the present rate of demand. It might have been mined at a faster rate. The value of the clay in place was not admitted to show its value as an income producing commodity; it was admitted as a factor used in determining the market value of the realty. We hold that the trial court did not err in declining to apply a capitalization factor to the value of the clay.

Appellant objected to this instruction concerning the clay given the jury in the court’s charge:

“You are instructed that clay deposits, if any, present in the subsurface of Tract B of the land in question, are to be considered a part of the land, and you are not to consider that they have any market value separate from the land, and when considered in arriving at the amount of compensation to be paid to the landowner, such deposits, if any, can only be considered to the extent that they add to, increase, enhance, or. decrease or detract from the value of the land, if they do.”

Appellant contends this instruction was a comment on the weight of the evidence regarding the clay on Tract B and that it called the jury’s attention to the evidence on the clay.

The jury is not allowed to aggregate the value of the clay and. value of the land. 4 Nichols on Eminent Domain § 13.-22.

“It is clear that sand, gravel and other material should not be valued separate and apart from the land, and when the value of such materials can be properly shown it should be restricted to the market value of such materials in place as they lie in their natural state in the land, and not after they have been severed from the land and thereby converted into a commodity.” Reilly v. State, 382 S.W. 2d 116, 121 (Tex.Civ.App., ref. n. r. e.).

The instruction was necessary to inform the jury that they were not permitted to evaluate the clay deposit separately from other uses of the land, and could not add the value of the clay and acreage value to arrive at damages. It was a proper instruction. State v. Adams, 489 S.W.2d 398 (Tex.Civ.App.1972, writ ref. n. r. e.).

Appellant’s fourteenth point of error is that the trial court erred in allowing Mc-Elrath to testify as to the value of the clay because he gave no basis for his opinion before stating it.

If an expert witness cannot supply from personal knowledge or observation the facts upon which his expert inference is to be founded, such facts must be presented hypothetically. 2 McCormick and Ray, Texas Law of Evidence (2nd ed.) 238, § 1402.

In our case the figures furnished to McElrath by the condemnee concerning excavation, transportation and replacement costs should have been incorporated into a hypothetical question before the witness testified as to the value of the clay in place, but we hold that the error in failing to require him to first give the basis for his opinion as to value does not require a reversal of the case. The figures in question were, as we have noted, later offered in evidence by the condemnee but they were excluded on the appellant’s objection, the basis of which we do not find in the voluminous record of this case.

Appellant’s fifteenth point of error is based on the trial court’s refusal to permit examination of McElrath outside the presence of the jury to determine the basis for his opinion of the value of the clay. We think it would have been well to have permitted voir dire examination of the witness outside the presence of the jury under the facts of this case, but a trial judge has wide discretion in conducting trials and we find no abuse of the court’s discretion in declining to do so here. See City of Waco v. Roberts, 12 S. W.2d 263 (Tex.Civ.App.1928), affirmed, 121 Tex. 217, 48 S.W.2d 577 (1932).

Appellant says the trial court erred in admitting evidence of the sales of eleven tracts of land in the Jacintoport complex, arguing that these were not sales of comparable property because Jacintoport is an industrial subdivision with improvements while the subject property is not. Mr. Reed, appellee’s appraiser, stated that Ja-cintoport was not an industrial subdivision and that the tracts sold in Jacintoport were comparable to the subject property.

Mr. Lewis, an appraiser called by the appellant, testified that Jacintoport was an industrial subdivision, with barge slips, utility and pipeline right of way available, railroad service, electricity, water, natural gas and telephone service, and roadways built throughout the property. This testimony was supported by an undated brochure of Jacintoport Corporation, appearing in the record in a bill of exception.

It is not the duty of the court, in jury trials, to resolve conflicts in the testimony of the witnesses. The jury is to decide their credibility and the weight to be given their testimony. Navar v. State, 344 S.W.2d 188 (Tex.Civ.App.1961, no writ), citing McCormick & Ray, Texas Law of Evidence, Sec. 3.

It is not error to admit testimony of an expert value witness as to the details of the sale of allegedly comparable property on the ground that it was improved and the subject property was not, where there was no positive testimony as to whether the land was improved at the time of the sale. State v. Dickerson, 370 S.W.2d 742, 745 (Tex.Civ.App.1963, no writ). Jacinto-port’s development was begun in 1965, and the sales offered were made from December, 1965, through December, 1973. There is no testimony as to exactly when these improvements were made available.

The appellant also complains about the admission in evidence of testimony by Mr. Reed about sales of several tracts of land because they are on the ship channel while the subject property is on the San Jacinto River.

The highest value placed upon any of the sales offered on the San Jacinto River was $6,500 per acre, while the ship channel properties sold for as high as $25,000 per acre.

Mr. Reed testified that the highest and best use of the property would be development for water-related industry in conjunction with the mining of the remaining clay. He testified that the properties in Jacintoport and on the Houston Ship Channel were sold for use by water-related industries and were comparable to the subject property. The trial court has broad discretion in determining whether sales used in forming a basis of opinion of value are of comparable property. Cohn v. State, 438 S.W.2d 860 (Tex.Civ.App., writ ref. n. r. e.) and cases there cited.

We hold that the trial judge did not abuse his discretion in admitting testimony about sales of the Jacintoport and of the ship channel properties.

Nor do we find error in the trial court’s having permitted the introduction in evidence of the condemnee’s exhibit 38, a three-dimensional model of the property. Condemnee limited its offer (outside the hearing of the jury) to the purpose of showing the adaptability of Tract B to its highest and best use as described by the condemnee’s appraiser, Reed, and stated that the owner had no future intended use of thé property. Appellant says the model contains changes in topography and shows streets, lots, roads, access changes and prospective uses of the tract after the clay had been removed, none of which reflect the condition of the property on the date of taking.

The condemnee offered no evidence of value based on the price it could obtain by selling the property bylots after spending the funds required to develop and subdivide it. In City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808 (1954), the Texas Supreme Court approved the admitting of evidence (including plats) of the suitability and adaptability of part of the property involved for a shopping center even though there was then in existence a zoning ordinance which prohibited its use for that purpose. The value testimony in that phase of the case was limited to the present value of the prospective use of the property as a shopping center. The court stated:

“ . . . if. it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions, he should admit testimony of present value based on prospective use of the property for purposes not then available.”

The court suggested that when such testimony is admitted it would not do violence to the definition of market value suggested in State v. Carpenter, 126 Tex. 604, 89 S. W.2d 194, to have it read:

“You are instructed that the term ‘market value’ is the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.”

In our case there is no zoning or other regulation which would restrict development of Tract B as the condemnee suggests, but Reed testified that the land would be suitable for use as shown by the model after the clay had been extracted. We hold that the condemnee’s exhibit 38 was admissible as an attempt to show the uses to which the property was reasonably adaptable within the reasonable future. State v. Albright, 337 S.W.2d 509 (Tex. Civ.App. 1960, writ ref. n. r. e.).

Appellant also asserts that the trial court erred in defining market value in its charge by following the suggestion made by the Supreme Court in the Cannizzo case which we quoted. We also overrule that point of error.

Appellant complains of the trial court’s having excluded testimony by Mr. David Lewis, a real estate appraiser whom it had called as a witness, about two (of four) sales of land which contained clay to be used for manufacturing purposes. Mr. Lewis testified that the sales were to people who bought land for the purpose of utilizing the clay it contained. He did not have any information as to the quantity or quality of the clay on the two tracts in question. We hold that the trial judge did not abuse his broad discretion in ruling that those two tracts were not shown to be comparable. If a tract of land is bought for the minerals it contains, the quantity and quality of those minerals are primary factors in determining its market value.

The appellant complains in point of error 43 that the trial court abused its discretion in excluding Mr. Lewis’ testimony concerning the sale from the Bessie M. West Estate to Goodpasture of 89.87 acres of land adjoining the subject land on the south. Mr. Lewis testified that this sale was one of those he used to arrive at his opinion of the market value of the subject property.

We overrule this point. On September 16, 1968, the board of directors of the Coastal Industrial Water Authority, a governmental agency, adopted a resolution expressing its intention to acquire certain specified lands, including this 89.87 acre tract, to accomplish its designated purpose.The deed from the West Estate to Good-pasture was executed on September 24, 1968, and the board’s resolution of September 16 was filed for record in the Deed Records of Harris County on October 1, 1968. There is evidence that plans for the project had been under study and development in the area of the subject property for some time and that mineral core bor-ings and other field investigations had been made by the contractors surveying the West property for the Coastal Industrial Water Authority beginning as early as January of 1967.

Evidence presented to the trial judge outside the presence of the jury included a title company’s closing statement as to sale of the West Estate tract to Goodpasture bearing this notation:

“Date 7/24/68
Revised 11/19/68”

No explanation was given as to what was revised. The closing statement shows that taxes on the tract were prorated to September 25, 1968; the trial court apparently considered that the sale was made on September 24, 1968, and we find no error in that decision.

In each of three cases decided in recent years the Texas Supreme Court has fixed the date beyond which the condemnee was not entitled to introduce evidence as to sales of property because the values of such properties were probably enhanced by the public facility itself. These cases are City of Dallas v. Shackelford, 145 Tex. 528, 199 S.W.2d 503 (1947); Barshop v. City of Houston, 442 S.W.2d 682 (1969) and City of Fort Worth v. Corbin, 504 S. W.2d 828 (Tex.1974).

In the latter case the Supreme Court stated that enhancement is allowed up to the time that the condemnor manifests a definite purpose to take the particular land.

In our case the question was not one of project enhancement but of whether the market value of land to be taken for use in the project was depressed by the resolution stating that there was a public necessity for its taking and authorizing proceedings to obtain it.

There was no opinion evidence as to whether the passing of the resolution affected the market value of the 89.87 acre tract, but Mr. Lewis testified before the jury that on July 23, 1968 Mary Gaillard et al conveyed to Goodpasture, Inc. 51 acres of land at $3921.57 per acre. The Gaillard tract adjoins the Bessie M. West Estate 89.87 acre tract on the south and west. Although the West Estate tract has access to both the San Jacinto River and the Crosby-Lynchburg Road, and the Gaillard tract has no access to any road, only to the San Jacinto River, the selling price per acre of the Gaillard tract in July, 1968, was almost twice as much as that of the West Estate tract, which was conveyed a week after passage of the resolution (for about $2,000 per acre). We conclude that absent evidence of other reasons for the difference in sales prices, the trial court did not abuse its discretion in excluding the West to Goodpasture sale as one affected by project influence. The trial judge was entitled to decide 1) that the field investigations and core borings made on the property under the direction of Coastal Industrial Water Authority during the months prior to adoption of the resolution put on notice those interested in property in that vicinity that Coastal Industrial Water Authority had it under consideration, and 2) that when such public agency manifested its definite purpose to take the West Estate tract these two factors gave the tract's owners • and its prospective purchasers knowledge of its inclusion in the project or made them aware of the need for inquiry. See City of Fort Worth v. Corbin, supra.

Appellant complains in its 63rd point of error that the trial cout erred in including the words “or decrease in value, if any” in the following instruction given to the jury in the court’s charge :

“Since the land in question is located within the boundaries of the project itself, in arriving at your answer to the special issue in this charge which inquires as to the market value of the Trinity Portland Cement Division property, you are instructed not to consider any increase in value, if any, or decrease in value, if any, of that property after September 16, 1968 caused by the location of the Coastal Industrial Water Authority project itself.”

The appellant’s Requested Instruction No. 4 asked the trial court to instruct the jury to the same effect as to any increase in value after September 16, 1968, but not as to any decrease.

We also overrule the 63rd point. In view of the evidence we have noticed we hold that the trial court did not err in instructing the jury not to consider project influence, whether it resulted in an increase or a decrease in value.

The appellant also asserts in other points of error that the trial judge' erred in admitting evidence as to sales of properties (other than those we have already discussed) because they were not comparable to the subject tracts. We have examined the evidence as to each of those sales. We think no useful purpose would be served in discussing each of them; we hold that the trial judge did not abuse his broad discretion in passing on the comparability' of these sales offered for comparison purposes. Cohn v. State, 438 S.W.2d 860 (Tex.Civ.App.1969, writ ref. n. r. e.).

Coastal Industrial Water Authority argues that the verdict was excessive.

The jury found that the value of Tract A was $270,000 and of Tract B was $2,581,-000 on the date of taking.

The appellee’s value witness Reed, whose qualifications as an expert in real estate appraisals are not disputed, testified that the value of Tract A on the date of taking was $309,777, which is $1.60 per square foot and that Tract B’s value was $20,500 per acre, or a total value of $3,307,400. He testified outside the hearing of the jury that there was clay worth about $1,300,0000 in Tract B but that he couldn’t say he added up the factors of value and that the clay took that part of his total figure. With the jury present Reed testified that the value of the surface of Tract B was right close to its value as he had stated it, with or without the clay but that it is a factor in determining the tract’s highest and best use. He said he did not make an independent valuation of the clay himself.

We do not find the verdict to have been excessive. It was less than the value testimony given by Reed, whose opinion as to value is supported by the evidence he submitted as to comparable sales. We do not find that the trial court erred in admitting Reed’s testimony or that of McElrath (as to the value of the clay in place) so we hold that the verdict was not excessive.

The amount of damages is always a question of fact for the fact finder and unless the finding is so excessive or so grossly inadequate as to indicate operation of an improper influence in determination of the amount, it will not be disturbed on appeal. Cannon v. State, 473 S.W.2d 325 (Tex.Civ.App.1971, writ ref. n. r. e.) and cases cited.

We find no merit in the condemn- or’s complaint that the trial court erred in overruling its objection to the court’s inquiring, in Special Issue No. 1, as to the value of Tract A separate from that of Tract B. The condemnor’s Statement described the two tracts separately, all of the real estate appraisers testified about the tracts separately and used different comparable sales in appraising each tract.

In the appellant’s 69th and 70th points of error it argues that the trial court erred in not granting its motion for mistrial when a Mr. Menasco, a prospective juror, related that the City of Houston was trying to take over some property near his home and had wiped out a neighbor of his by paying him World War II prices for his land. Menasco was excused, and condemnor’s motion for a mistrial was overruled. Appellant did not ask for it, but the trial judge then gave an instruction to the remaining prospective jurors that persons with feelings like Mr. Menasco’s are not entitled to serve on that jury; that land is sold to condemning authorities at a price fixed by agreement or by jury verdict, that the jury is not to be influenced or misled by what Menasco said and nothing he said could have any application to the jury’s deliberation in this case. Further, that “this court finds . . . that this proceeding, . . . has been legal, orderly and fair to both parties.” At the request of condemnee, the judge added: “Up to this point.” He then asked whether any member of the panel felt he could not be fair and impartial after hearing a panelist express himself on what he considers to be a fact. No one responded.

Although Menasco was complaining about the City of Houston’s acts, not those of the Coastal Industrial Water Authority, it should be pointed out that counsel for the condemnee had earlier told the panel that the attorneys for Coastal Industrial Water Authority are “in the City Attorney’s office.”

Appellant complains of the trial court’s adding the words “up to this point.” We find nothing prejudicial in the adding of those words. That was already the meaning of the judge’s statement that the proceeding has been legal. Nor do we find error in the court’s having overruled the appellant’s motion for mistrial. We cannot say that the remarks of the panelist were so prejudicial that the trial judge’s instruction did not cure them or that they probably caused the rendition of an improper verdict in this cause. Texas Employers’ Insurance Ass’n v. Cruz, 280 S. W.2d 388 (Tex.Civ.App.1955, writ ref. n. r. e.).

We overrule appellant’s points of error 71 and 72, complaining of the trial court’s refusal to grant a mistrial or to instruct the jury to disregard opposing counsel’s remark that he was glad his clients were in the hands of the jury rather than in the hands of Mr. Spence and his confederates.

The statement complained about was not objected to when made, but the motion by appellant’s counsel for a mistrial and his request that the jury be instructed to disregard the remark came after the jury had been taken to the jury room to begin its deliberations.

We think the only thing possibly offensive about the remark was use of the word “confederates”. Had an instruction to disregard been promptly requested, it probably should have been given, but we believe it would have unduly emphasized the matter had the judge called the jury back from the jury room to give it.

The attorneys on. both sides in this case had engaged in a few personal remarks about their opponents’ trial tactics. We find nothing in the remark in question to cause us to say that it was calculated to cause and probably did cause the rendition of an improper verdict and judgment. City of Houston v. Ready, 370 S.W.2d 210 (Tex.Civ.App.1963, no writ).

As to the 73rd point of error, we find no error in the trial judge’s having orally reiterated to the jury just before it began its deliberations the instruction in the charge concerning the signing of the verdict.

Appellant’s 74th point of error asserts that the trial court erred in entering judgment that appellant pay interest to the date of judgment on the amount of money by which the judgment exceeded the award of the special commissioners.

We overrule this point on authority of Trinity River Authority of Texas v. Sealy & Smith Foundation, 435 S.W.2d 864 (Tex.Civ.App.1968, writ ref.).

Appellant next complains that the trial court’s judgment not only allows the condemnee to recover $475,313.74 in interest on the amount by which the judgment exceeds the commissioners’ award, as complained about in point of error 74 above, but also allows it to recover interest on the judgment until paid, thus allowing interest on the $475,313.74 in interest. Appellant cites Trinity River Authority v. Sealy & Smith Foundation, supra, in support of its position. The only point of error in that case called upon the court to determine whether the trial court erred in providing for payment of interest on the excess of the amount of the judgment over the amount of the special commissioners’ award from the date of deposit.

Since the point with which we are now concerned in our case was not before the court in the case just cited, it was dictum when the court quoted a text stating that interest on the excess “will continue until the final payment of the amount named in the judgment is actually paid to the defendant condemnee. . . ”

We consider the interest on the excess to be pre-judgment interest and find no reason why Article 5069-1.05, Vernon’s Ann. Texas Civil Statutes does not apply under these circumstances. It states: “All judgments of the courts of this State shall bear interest at the rate of six percent per an-num from and after the date of the judgment . . . ” For two cases in which the dicta supports the trial court’s holding in our case, see State v. Brunson, 461 S. W.2d 681 (Tex.Civ.App.1970, writ ref. n. r. e.) and State v. Griffis, 300 S.W.2d 220 (Tex.Civ.App.1957, writ ref. n. r. e.).

In its 76th and last point of error the appellant urges us to reverse the judgment of the trial court because the cumulative effect of the errors of the trial court caused the rendition of an improper and excessive verdict.

We have held that on almost every matter complained of the trial judge did not err and we have not found reversible error in any of them. We cannot say that the cumulative effect of the trial court’s actions caused the rendition of an improper or excessive verdict or judgment.

The other points asserted by the appellant have all been considered by this court and are overruled.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Ernestine Pamela MAGALLON, Appellant, v. STATE of Texas, Appellee.
    No. 16458.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 1, 1975.
    Rehearing Denied May 29, 1975.

      Bounds, Fitzgerald, McGilvray & Grimm, Martin J. Grimm, T. Wayne Harris, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joseph T. Terracina, Chris Hanger, Kay L. Burkhal-ter, Asst. Dist. Attys., Houston, for appel-lee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment terminating the parental rights of Ernestine Pamela Magallon, the appellant. The case was tried to the court without a jury. A question involved on appeal is whether a social study authorized by Section 11.12 of the Family Code, V.T.C.A., and made part of the record of the suit as required by Section 11.12(d) constitutes evidence on which a judgment may be based.

The petition in this suit was filed by a representative of the Harris County Child Welfare Unit. It alleged that the termination of the parent-child relationship between the parents and the child would be in the best interests of the child. As grounds for termination the petition alleged that said mother has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional wellbe-ing of the child. In addition to requesting termination of the parent-child relationship the petition requested the appointment of Gene Lege, Director of the Harris County Child Welfare Unit, as managing conservator for the child.

The judgment terminated the parent-child relationship and ordered that Harris County Child Welfare Unit be appointed managing conservator of the child.

The case came on for trial on the 3rd day of June, 1974, at which time two witnesses were heard. Ernestine Magallon was called as an adverse witness. She testified that she was the mother of Baby Girl Magallon, the subject of this suit. She lives with Antonio Valdez, a friend of hers and her mother’s. He rents rooms and six people were living there at the time of the trial. Three of these people were men whose names she did not know. She had been in this house only two days, having previously lived with her mother. Her mother required her to leave when she became involved in a fight between her sister and her sister’s husband. She works for a man who sells Watkins Products and makes about $40.00 a month. Her rent is $5.00 per month. She stated that Mr. Valdez would help her take care of the baby and that she planned to get a better job. She testified that Mr. Flores was the father of the child and that they were not married. She has a history of epileptic seizures, but she testified that she had not had one for about three years. She was taking her medication for her epileptic seizures regularly. She had previously had an illegitimate child which was taken away from her by a welfare worker. At that time she had seizures by reason of her epileptic condition and she went to the Austin State Mental Hospital for treatment. This was in December of 1972. She stayed only about one month when she ran away because she was not used to living away from Houston.

She testified that if she was given the baby back she would find a baby sitter to keep the child while she was at work. At the time of the trial the child was four months old. She testified that the child was taken from her when it was about two days old. She realized that it would be her duty to take care of the child carefully and to provide her food and clothing; that she would have to take care of her real good and take her to a doctor. She testified that she did not understand what was meant by “the emotional needs” of an infant. At the time of the trial she was pregnant. Louis Martinez, the father, had to go back to Mexico because his mother had died, but he said he was coming back.

Mr. Walter H. Ewing testified that he was a social worker employed by the Harris County Welfare Unit. He identified the social study and testified that while he did not prepare the instrument a case worker under his supervision did, and that there was nothing that he would like to add to or take away from it. At that time the State offered the report into evidence and the court stated: “The report is part of the record in this case.” This report is found in the transcript of the record, and a copy of the report is attached to the statement of facts, but is not authenticated as a part of the statement. The transcript also contains a supplemental report dated August 1, 1974.

There is no expert testimony that the promiscuous behavior of the mother would adversely affect the emotional needs of the child. There is no testimony that the mother has engaged in conduct which endangers the physical wellbeing of the child.

Evidence that the unwed mother of this infant child had one other illegitimate child and is pregnant should be considered by the court in determining whether a termination of the parent-child relationship is in the best interests of the child. Such evidence alone is insufficient to support a finding that such conduct endangers the emotional wellbeing of the four month old child. In the absence of testimony by a qualified expert that such conduct was reasonably calculated to endanger the emotional wellbeing of the child in the future, an inference that such danger exists could not be drawn from the permissible inference that the mother’s conduct would continue unchanged into the future. The statute speaks of past conduct constituting a present danger to the physical or emotional wellbeing of the child. Before a termination of the parent-child relationship can be ordered, the court must find such conduct and also find that a termination of the relationship is in the best interests of the child. The evidence is insufficient to support the judgment unless the trial court was authorized to consider as evidence the content of the social study.

Section 11.08 of the Family Code requires that the petition in a suit affecting the parent-child relationship shall contain a statement of the statutory grounds on which the request is made. Section 11.13, supra, authorizes a jury trial. Section 11.-14, supra, provides:

“(a) Except as otherwise provided in this subtitle, proceedings shall be as in civil cases generally.
“(b) . . .
“(c) A court may compel the attendance of witnesses necessary for the proper disposition of the petition, including a representative of the agency making the social study, who may be compelled to testify.
“(d) . . .
“(e) The rules of evidence apply as in other civil cases.
“(f) When information contained in a report, study, or examination is before the court, the person making the report, study, or examination is subject to both direct examination and cross-examination as in civil cases generally.
Section 11.15, supra, reads:
“The court’s finding shall be based on a preponderance of the evidence under rules generally applicable to civil cases.”
Section 15.02, supra, provides:
“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the-parent has:
(D) engaged in conduct or knowingly placed the child with persons who en- . gaged in conduct which endangers the physical or emotional well-being of the child; or . . and
“(2) termination is in the best interest of the child.”
Section 15.05, supra, provides:
“(a) If the court finds grounds for termination of the parent-child relationship, it shall enter a decree terminating the parent-child relationship.
“(b) . . .
“(c) If the court does not order termination of the parent-child relationship, it shall:
(1) dismiss the petition; or
(2) enter any order considered to be in the best interests of the child.”

Since Sections 11.14 and 11.15 of the Family Code provide that the rules of evidence apply as in other civil cases and that the court’s finding shall be based on a preponderance of the evidence under the rules generally applicable to civil cases, we hold that the social study although a part of the record in the case is not evidence upon which the court’s findings may be based unless such report is properly admitted into evidence. The court, when construing a statute, recognizes a presumption that the legislature intended effect to be given each provision of a statute. Section 11.12 of the Family Code requires the agency or person making the social study to file findings and conclusions. Section 11.14(f) contemplates that the person making the report will be a witness. Section 15.05 requires that the court enter a decree terminating the parent-child relationship if it finds grounds for termination. However, if the court does not find grounds for termination this section authorizes it to enter any order considered to be in the best interests of the child. In making such an order the court would be authorized to consider the social study. In addition the social, study might be a valuable source of information in preparation for the trial of the case. A social study is not required in termination proceedings, and in view of the legislative directive that the ordinary rules of evidence apply, we do not find an intent on the part of the legislature in directing that the report be made part of the record of the case to make admissible in evidence a record which might otherwise not be admissible.

In Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.—Austin 1951, writ ref’d), the court stated:

“Appellants’ last point is that the court erred in admitting in evidence and in considering a written report prepared by a representative of the Department of Public Welfare. This report dealt with the matters mentioned in Sec. 2, Art. 46a, V.A.C.S. The fact that much of the report may be technically hearsay evidence is unimportant. Section 2, supra, requires an investigation be made and that the results be submitted to the court in a written report, and authorized the Department of Public Welfare to make such investigation. The court was duty bound to read and consider the report and give it such weight as it deserved.”

Other adoption cases have followed this rule. See Alexander v. Clower, 486 S.W. 2d 189 (Tex.Civ.App.—Tyler 1972, no writ); In Re Jones, 475 S.W.2d 817 (Tex. Civ.App.—Eastland 1972, writ ref’d n. r. e.). Such reports have also been considered by the court in child custody cases. See Erwin v. Erwin, 505 S.W.2d 370 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Cooksey v. Perkins, 263 S.W.2d 952 (Tex.Civ.App.—Galveston 1954, writ ref’d n. r. e.); Crawford v. Crawford, 256 S.W.2d 875 (Tex.Civ.App.—Amarillo 1952, no writ); Luman v. Luman, 231 S.W.2d 555 (Tex.Civ.App.—Texarkana 1950, no writ).

The preceding discussion of various provisions of the Family Code, we think properly distinguished the case at hand from these cases.

Since this case must be reversed, we call attention to certain decisions which may be helpful to the court on retrial.

In Smith v. Riviere, 248 S.W.2d 526, 530 (Tex.Civ.App.—Texarkana 1951, no writ), three properly authenticated photostatic copies of navy medical reports dealing with the plaintiff’s mental and physical condition were admitted in an action to cancel a deed on the ground that the plaintiff had been mentally incompetent at the time of its execution. These reports indicated not only the finding of the navy’s medical board as the result of their examination but also detailed the man’s life from the age of six, his alleged excessive drinking habits over the years, shock treatment given in a medical center prior to his entry into military service and his apparently paranoid beliefs which were symptoms of his mental incapacity. The court held that the provisions of Article 3737a, Vernon’s Tex.Rev.Civ.Stat.Ann., and a federal statute did not authorize the introduction in evidence, over objection, of the portions of the report constituting hearsay evidence. The court stated:

“Neither statute expresses or implies an intent to abrogate the well-settled principle of the common law of the admissibility of the hearsay evidence based on further hearsay evidence. As stated in 20 Am.Jur., p. 766, and applicable here, ‘Documentary evidence, when offered in evidence is subject to the same rule of evidence respecting relevancy, competency or materiality as to oral testimony.’ (citing cases)”

In Roberts v. Dallas Railway & Terminal Co., 276 S.W.2d 575 (Tex.Civ.App.—El Paso 1953, writ ref’d n. r. e.), a personal injury case, it was held error to admit in evidence city-county public welfare records containing excerpts from case workers’ notes as to the plaintiff’s habits and eccentricities and which questioned the professional responsibility of her doctor and attorney. At page 578 the court stated:

“. . . Appellee insists that these matters come under the exception to the hearsay rule regarding public records of an official nature. We do not find that these items measure up to the requirements of such exception. The authorities clearly indicate that the exception applies to official records of a routine nature concerning events, reports, acts or returns of an official or employee, and certainly cannot be extended to include mere opinions and impressions of case workers and opinions of third parties conferring with case workers.”

In Cross v. Houston Belt & Terminal Railway Company, 351 S.W.2d 84 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.), the defendant’s doctor witness was permitted to read a medical report from the Houston Speech & Hearing Center. The report was not proven as a hospital record under Article 3737e and Judge Werlein indicated that if it had been so proved, it would have been admissible. At page 87 Judge Werlein stated:

“While it is true a physician may relate as a basis for his opinion and not as independent evidence to establish the fact, the history given him by the patient, we know of no authority holding it permissible for a doctor to read in evidence another doctor’s unproven diagnosis or report, regardless of whether he has based his opinion in whole or [in] part thereupon ...”

In Texon Drilling Co. v. Elliff, 216 S. W.2d 824 (Tex.Civ.App.—San Antonio 1948, writ ref’d n. r. e.), certain Railroad Commission reports were received in evidence but the court excluded certain comments as to whether the well sands had been drained by the blow-out. The trial court’s action was affirmed, the court holding that the opinions and conclusions from an undisclosed person not subject to cross-examination were not admissible under the provisions of Article 3737c, Tex.Rev.Civ. Stat.Ann.

In 30 Texas Law Review 112, there is a helpful discussion of the admissibility of evaluative reports of public officials and the question of whether the opponent of such a record should be compelled to call the party making the report in order to question its authenticity.

The record clearly indicates that there was a formal presentment of the Welfare Department’s report in evidence and the question is as to whether this offer was accepted by the trial court. A formal acceptance does not appear necessary where the record reflects that an offer was made and that the proffered evidence was then treated as being before the court. Farrell v. Evans, 517 S.W.2d 585 (Tex. Civ.App.—Houston [1st] November, 1974, no writ). The trial court apparently did not consider it necessary to admit the report into evidence since it was already “in the record.” Since the social study is not in the approved statement of facts, it has not been considered by this court.

If such a report is received in evidence in a trial before the court, the inadmissible portions of the report should be disregarded, and it will be presumed that the law did not consider evidence which was incompetent as hearsay. Alexander v. Clower, 486 S.W.2d 189, 191 (Tex.Civ.App. —Tyler 1972, no writ).

Reversed and remanded.


author: RALEIGH BROWN, Justice.

text:
    CITY OF GARLAND, Appellant, v. Roy WYRICK et al., Appellees.
    No. 4773.
    Court of Civil Appeals of Texas, Eastland.
    May 16, 1975.
    Rehearing Denied June 6, 1975.

      Pete Eckert, City Atty., Garland, Earl Luna and Mary Milford, Dallas, for appellant.
    Wayne O. Woodruff and Richard G. Rogers, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees.
   RALEIGH BROWN, Justice.

This is a condemnation case. The City of Garland sought to condemn Block 21, Duck Creek Addition to the City for a civic center and other public purposes. The owners of the property, except for city owned easements, were Roy Wyrick and wife, Alena Wyrick, and Gale Wyrick and wife, Billie Wyrick. Following a jury trial, a judgment awarding the Wyricks the sum of $157,800 was entered. The City of Garland appeals.

The thrust of the appeal of the City of Garland is primarily two fold. First, the City urges no judgment could be entered on the answer of the jury to the special issue in accordance with the instructions of the court. The issue and answer were as follows:

“MARKET VALUE as that term is used in this charge means the price a property will bring when offered for sale by one who desires to sell but is under no compulsion to sell and is purchased by one who desires to buy but is under no necessity to buy.
SPECIAL ISSUE NO. 1
From a preponderance of the evidence what do you find is the fair market value of the land condemned by the City of Garland on September 13,1972.
Answer in Dollars and Cents.
ANSWER: $2.00 a sq. ft.”

The City contends the case was brought to condemn, not on a square footage basis, but the whole of Block 21, Duck Creek Addition. It argues the court erred in making findings of fact and/or calculations in addition to the jury’s answer. Further, it urges that the testimony of Gale Wyrick, an interested witness as to the square footage, was not so clear, direct and positive as to do more than raise an issue of fact.

Our examination of the record reflects the following testimony of Gale Wyrick.

“Q. (By Rogers) How much land is in that total tract ?
A. (By Mr. Wyrick) Almost two acres.
Q. 78,900 square feet?
A. Right.”

Additionally, Carmichael, an appraisal witness for the landowners, testified:

“Q. (By Mr. Woodruff) And what is that opinion? What is your opinion of the fair market value of the subject property?
A. (By Mr. Carmichael) $157,800.
Q. And what unit price is that per square foot?
A. $2.00 per square foot.
Q. $157,800?
A. Yes, sir.
Q. Now, of course, the City of Garland is taking all of the property. There is nothing left ?
A. That is correct.”

The City, following the testimony set out above, presented both an engineering witness and an appraisal witness neither of whom disputed the testimony given as to the amount of square feet in the land being condemned.

The appropriate rule was announced by the Court in Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W,2d 41 (Tex.1965):

“ . . . If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Woolgrowers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943). This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. Valley Stockyards Co. v. Kinsel, supra [369 S.W.2d 19 (Tex.Sup.1963)]; James T. Taylor & Son, Inc. v. Arlington Ind. School Dist, 160 Tex. 617, 335 S.W.2d 371 (1960); Owen Dev. Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640 at 642 (1957); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943); Simonds v. Stanolind Oil & Gas. Co., 134 Tex. 332, 136 S.W.2d 207 (1940).”

The testimony of Gale Wyrick being clear, direct and positive and not being challenged by the City, we hold the uncon-tradicted evidence establishes the tract consisted of 78,900 square feet.

In considering the City’s argument that the court made improper findings of fact or calculations, we note the opinion evidence in this record as to the value of the land condemned is all based on a square foot value. It is stated in Vincent v. Bell, 22 S.W.2d 753 (Tex.Civ.App.—Waco 1929, dism’d):

“ . . . There is no doubt but that it is a well-settled general rule in this state that where a case is submitted to a jury on special issues, and findings in response thereto returned, it is the duty of the court to enter judgment in accordance therewith.”

The court continued :

“ . . . It is equally well settled by the decisions of our appellate courts that where the findings are ambiguous, in order to arrive at the proper interpretation of such findings of the jury the court is authorized to examine not only the charge, but the pleadings and evidence, and if by an examination of the record the intention of the verdict can be ascertained, such verdict so construed constitutes the proper basis for judgment. James v. Wilson, 7 Tex. 230; Rushing et al. v. Lanier et al., 51 Tex.Civ.App. 278, 111 S.W. 1089; Gibson et al. v, Dickson et al. (Tex.Civ.App.) 178 S.W. 45 [writ refused); G. C. & S. F. Ry. Co. v. Baker et al. (Tex.Civ.App.) 218 S.W. 7, 12 (writ dismissed) ; Pickrell v. Imperial, etc., Co. (Tex.Civ.App.) 231 S.W. 412, 413 (writ dismissed); Adamson Lumber Co. v. King Lumber Co. (Tex.Civ.App.) 227 S.W. 702 (writ dismissed) ; Crenwelge v. Ponder (Tex.Com.App.) 228 S.W. 145, 146; G. C. & S. F. Ry. Co. v. Saunders (Tex.Civ.App.) 286 S.W. 919;”

As stated in Speer, Law of Special Issues in Texas § 419 (1931), at page 550:

“Mere ambiguity that is answerable from the whole record is not fatal to the verdict. It yet has a legally ascertainable meaning. But where uncertainty comes in, and the true meaning is not thus ascertainable, there is no verdict and a mistrial results.”

The Texas Supreme Court in First Federal Savings & Loan Association of Dallas v. Sharp, 359 S.W.2d 902 (Tex.1962), held:

“ . . .If the jury finding is ambiguous or unclear, the courts must try to interpret the finding so as to uphold the judgment. State v. Hale, 136 Tex. 29, 146 S.W.2d 731."

In the case at bar we hold that the court properly interpreted the finding of the jury. Service Life Insurance Co. v. Miller, 271 S.W.2d 301 (Tex.Civ.App.—Fort Worth 1964, writ ref. n. r. e.), and State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941).

The City further contends the property in question was zoned Light Industrial and the only evidence as to market value with such zoning, based on compara-bles with like zoning, was $36,700. The City argues the higher market value testimony was based on the property’s use and zoning as commercial and on comparables so used and zoned. It contends since the court’s charge did not authorize nor instruct the jury, in connection with market value, to take into consideration all other uses to which the property was reasonably adaptable and for which it in all reasonable probability would become adaptable in the future, there was no evidence or in the alternative insufficient evidence to support the judgment.

We disagree with this contention. The record establishes that the witness, Carmichael, offered by the landowners as their expert on land values, did testify as to values under the mistaken belief that the subject property was zoned commercial. However, the City neither objected to such testimony nor moved to strike it after the testimony was given.

As stated in State v. Hays, 361 S.W.2d 401 (Tex.Civ.App.—Dallas 1962, writ ref. n. r. e.) :

“In passing on the admissibility of alleged comparable sales a trial judge must to a certain extent pass on the degree of similarity of said properties and sales. No inflexible rule has been laid-down to govern the court’s decision. In admitting or rejecting such evidence a judge is allowed considerable discretion. Lewis on ‘Eminent Domain’ Vol. 2 (2d Ed.) § 443 ; 23 Tex.Jur.2d 271, 273 ; 32 C.J. S. Evidence § 593, p. 447.”

In Cooper v. Argonaut Insurance Co., 430 S.W.2d 35 (Tex.Civ.App. Dallas 1968, writ ref. n. r. e.), said:

“Appellant did not object ... to the testimony in question . . . . It is our opinion that by his failure to object he waived what error there may have been. Such objections cannot be first urged on appeal as a ground for reversal. Hinsley v. Continental Trailways Bus System, 302 S.W.2d 668 (Tex.Civ.App., Galveston 1957, no writ), and cases therein cited; McCormick and Ray, Texas Law of Evidence, 2d Ed., § 22, p. 20; 56 Tex.Jur.2d, Trial, § 158, p. 499;”

See also City of Houston v. Huber, 311 S. W.2d 488 (Tex.Civ.App. Houston 1958, no writ).

In The Board of Regents of the University of Texas System v. Pruett, 519 S.W.2d 667 (Tex.Civ.App.—Austin 1975, no writ), the court considering an objection to evidence of sales zoned for “C” commercial uses, on ground of lack of similarity to condemned property zoned for “B” residential uses held:

“ . . . The objection to this sale, on the basis of lack of similarity, is applicable more to the weight of the evidence than to its admissibility. State v. Hays, 361 S.W.2d 401, 403 (Tex.Civ.App. Dallas 1962, writ ref. n. r. e.).”

The Court in Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), stated:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974).”

Applying such rule, we hold there is some evidence to support the finding of the jury.

We have examined the entire record and overrule the contention of the City of Garland that there is insufficient evidence to support the judgment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We have examined all points of error and overrule each. The judgment is affirmed.


author: EVANS, Justice.

text:
    Alvin E. SIMS et al., Appellants, v. Janice R. CAGE, Appellee.
    No. 16463.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 15, 1975.
    Rehearing Denied June 5, 1975.

      Dale Harvill, Houston, for appellants.
    James L. Robertson, Don R. Emerson, Houston, for appellee; Wheat, Thornton & Shaw, Jo E. Shaw, Jr., Houston, of counsel.
   EVANS, Justice.

Appellee, Janice R. Cage, brought this trespass to try title action to recover possession and title to approximately 28 acres of land against defendants, Howard C. Meyer, Roma C. Stott and Sims Properties, Inc., a Texas corporation, Leverne Edward Sims, Annie G. Sims, Alvin E. Sims and Maurice Jewell Sims. Subsequent to filing of suit, Mrs. Cage obtained conveyances from Roma C. Stott and the Independent Executor of the Estate of Howard Meyer, deceased, and the cause proceeded to trial against the remaining defendants.

Mrs. Cage established a record title to the land in suit through mesne conveyances from Aaron Sims, who had conveyed a 29¾ acre rectangular tract of land, including the land in controversy, to his son, Mose Sims, by deed dated March 10, 1915. Subsequent to that conveyance, in 1919, Mose Sims conveyed the 29¾ acre tract to G. A. Singleton who later that year recon-veyed to Mose Sims an approximate two acres of land out of the southwestern corner of the larger tract. The relative location of these tracts as shown on plaintiff’s exhibit number 1, appears as follows:

The land in controversy is located north of Atascocita Road, east of Lake Livingston, in Harris County, Texas.

The defendants claim ownership of the approximate two-acre tract as heirs of Mose Sims and his wife, Sarah Sims. It is undisputed that Mose Sims and those who claim under him, sometimes referred to as the Sims family, have at all material times occupied a house situated on the two-acre tract of land. The Sims family claimed no record ownership to the larger tract and based their claim upon the ten year statute of limitations, Article 5510, Vernon’s Tex. Rev. Civ. Stat. Ann.

The issues submitted to the jury and their responses are as follows:

“Special Issue No. 1
“Do you find from a preponderance of the evidence that the Defendants, LEV-ERNE EDWARD SIMS, ANNIE G. SIMS, ALVIN E. SIMS and MAURICE JEWEL SIMS, or MOSE SIMS, asserted adverse possession, if any, between the year 1939 and April 17, 1970, to the property in controversy against the Plaintiff such as was and is of such unequivocal notoriety that Plaintiff would be presumed to have notice of such adverse possession ?
“Answer We do’ or We do not’.
“ANSWER: We do’
“If you have answered special issue No. 1 We do’, and only in that event, then answer:
“Special Issue No. 2
“Do you find from a preponderance of the evidence that Mose Sims, Leverne Edward Sims, Annie G. Sims, Alvin E. Sims, and Maurice Jewel Sims held exclusive, peaceable and adverse possession of the land in controversy in this suit, cultivating, using or enjoying the same for any consecutive period of ten years between 1930 and April 17, 1970 ?
“Answer We do’ or We do not’.
“ANSWER: We do’

If you have answered Special Issue No. 2 We do’, and only in that event, then answer:

“Special Issue No. 3
“What consecutive period of ten years do you find from a preponderance of the evidence to have been so adversely and exclusively held?
“Answer by stating a beginning date and an ending date.
“AN S WER: Beginning January month, 1945 year.
Ending January month, 1955 year.”

After the jury’s verdict, the trial court granted a motion for judgment n. o. v. and entered judgment for Mrs. Cage. We affirm.

In the year 1929 F. O. Perkins, who had acquired the property from the administrator of the estate of G. A. Singleton, the remote grantor of Mrs. Cage, recovered a judgment in trespass to try title against the Sims family and others covering the same property which is in controversy in this suit. It is undisputed that the Sims family lived on the two-acre tract at the time this judgment was entered and was using the land in controversy for the purpose of grazing its cattle. The continued possession of the Sims family after the entry of this judgment must be deemed permissive and not adverse to the title of the record owner, unless and until it was shown that the record owner had knowledge or notice that such permissive relationship had been repudiated. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794 (1955); Green v. Vance, 158 Tex. 550, 314 S.W.2d 794 (1958).

Alvin E. Sims, one of the defendants and a son of Mose and Sarah Sims, testified that he was born in 1920 on the two-acre tract. The first time he recalled being on the land in controversy was about the year 1929. He said his father was using the property at that time and continued to use it for pasturing cattle up until the time he died in 1955. He said the land was primarily used for raising cattle and horses and he did not know of any period of time after 1929 that his father and the family did not use the property. He said in about 1929 or 1930 his father had cattle and horses on the land in controversy and that Mr. Perkins also had a horse in the same pasture. He did not recall anything about the 1929 judgment but did recall that Perkins and his wife lived on the land and had a house in the northeast corner. He said he remembered the house being there in 1929 and that Perkins and his wife lived there until it burned down several years later. He said Perkins and his father had a very good relationship. He testified that as long as he could remember there had been a fence around the land in controversy but he didn’t know who had first erected the fence. He testified that the land was entirely fenced “except for a few openings” where their cattle entered the two-acre tract and that they used the smaller tract as a “holding” lot for their livestock. He said he and his family had maintained the fences on the larger tract and that the fences had not been changed in any respect while he was familiar with the property.

Guy Smith, age 79, a witness for the Sims family, had lived in the vicinity of the property all his life. He testified that from about 1930 until the present the Sims family had run their stock on the land in controversy. He said he had passed by the property going to Crosby from Huffman and that he had observed their cattle on the land. He said the Sims family used to break horses on the property and they broke several horses for him. He had observed no one other than the Sims family using the property. He said the Sims family farmed a part of the property for awhile in the 1940’s, but did not testify for how long or to what extent they farmed the land. He recalled that Perkins had a garden at his house about the time the house burned but he didn’t recall whether Perkins continued to maintain the garden after that time. He testified that the tract was wooded and that if you drove down the road next to it you could not see very far back into it because of the trees. He said that due to this factor, the property was not worth much as grazing land as not very many cows could be pastured on it. He said he did not see cattle every time he passed by and there, were times he would pass' and see no activity because of the trees. He testified that most of the time he saw no activity and that the only time he saw any activity was when a cow happened to stray close to the fence.

Another of the defendants, Leverne Edward Sims, born in 1927 on the two-acre tract and raised there, testified that he remembered the land in controversy since the year 1934 or 1936. He testified that from that time until the present, his father and his family had used the property for grazing their cattle and horses and for cutting wood. He said no one had ever interfered with their use. His recollection was that the fence around the property had been there as long as he could remember. He said he could not recall any logging operations on the property prior to 1955 and that his family just cut timber for posts or fire wood.

Mr. Lloyd Clark, Sr., a witness for the Sims family, had lived across the road from the property since about 1920. He did not know whose fence was around the land but supposed it to belong to Sims. He could not recall any time that the property had not been continually fenced. He could not recall any time that the Sims family had not used the property and he did not know of any cattle other than those of the Sims family being on the property. He testified that the property upon which the Sims house was located and the land in controversy were “all under the same fence.” He did not know about the “two acres” and he considered the Sims property to be “the whole tract.” He said the Sims family had cattle on the property as far back as 1919 and that their use of the property from that time up to the present time had not changed much. He said the fence around the land in controversy had been there as long as he could remember .and that he did not see it installed but had seen it being fixed up and maintained.

The other witnesses in the case tended to substantiate this testimony. From the testimony presented, it appears to be undisputed that the Sims family was in possession of the two-acre tract and making use of the land in controversy prior to the 1929 judgment. It also appears undisputed that the property was at that time fenced in substantially the same manner as existed throughout the claimed period of limitations. The Sims family only used the property for grazing horses and cattle and cutting wood for their own use during the claimed period of limitations. The Sims family erected no houses or other improvements on the land in controversy and only maintained the fences in a state of repair necessary to contain and exclude cattle.

The evidence, considered in a light most favorable to the Sims position, shows merely an incidental enclosure and the casual grazing of an undetermined number of cattle. It was undisputed that the Sims cattle were sometimes grazed on the two-acre tract. On such occasions there would have been no indication to the record owner of any use being made of the land in controversy for grazing purposes. The Sims family had the right .to maintain the fences between their two-acre tract and the land in controversy and there is no evidence that the Sims family built fences which “designedly enclosed” the land in controversy.

“Part of the unenclosed commons might become enclosed as a result of being fenced out by surrounding owners. The grazing of an enclosure thus ‘casually’ or ‘incidentally’ created has never been regarded as an actual and visible appropriation of the land within the meaning of Article 5515, Vernon’s Ann. Civ.Stat. In the absence of special stock laws, an owner who does not properly fence his property has no cause of action for damage done by cattle of ordinary disposition that enter the land. Clarendon Land Investment & Agency Co., v. McClelland, 86 Tex. 179, 23 S.W. 576. If the owner of land enclosed with that of another wishes to prevent the latter’s livestock from grazing on his property, his remedy is to construct a suitable fence for that purpose. Pace v. Potter, 85 Tex. 473, 22 S.W. 300. It would be rather strange then to hold that a person might acquire limitation title by simply doing that which he is legally entitled to do, i. e. permit his livestock to wander and graze upon land that he happened to find enclosed with his own deeded or leased land.
“It is accordingly well settled that the mere grazing of land incidentally enclosed as a result of the construction of fences built for another purpose does not constitute possession that will ripen into title by limitation. The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as part of his case that the land in dispute was designedly enclosed. (Citing cases).” McDonnold v. Weinacht, 465 S.W.2d 136, 141 (Tex.1971).

The occasional cutting of timber by the Sims family for their own domestic purposes was not such use and possession as would sustain a claim of title under the limitation statute. Kirby Lumber Corp. v. Lindsey, 455 S.W.2d 733, 741 (Tex.1970). Although there was testimony that the Sims family - may have planted “oats or something” on the land during the 1940’s, it is not contended that the land was cultivated for a sufficient period of time to mature title by limitation. The Sims family paid no taxes with respect to the land in controversy and to the extent that the evidence shows payment of taxes, such taxes were paid by the record owner.

It has been held that one seeking to establish title to land by virtue of the statute of limitations must meet his burden of proof by clear and satisfactory evidence. Chapa v. Garcia, 513 S.W.2d 953 (Tex.Civ.App.—San Antonio, writ ref’d n. r. e.). We hold that the evidence offered on behalf of the Sims family was legally insufficient to support their claim of a limitation title.

We also hold that the use and possession of the land in suit by the Sims family after the entry of the 1929 judgment was not of such character as would place the record owner on notice that the land was being adversely claimed. It is undisputed that no substantial change was made in the location or character of the fences around the land in controversy and the use made of the land after the judgment was consistent with the use made of the land prior to that time.

In order to establish notice to the record owner that the permissive character of possession has been repudiated, the adverse claimant must prove that his acts were of such clear and unequivocal nature and notoriety, and were so distinctly hostile to the rights of the true owner, that his intent to claim the land by adverse possession is clear and unmistakable. Rau v. Christy, 383 S.W.2d 957 (Tex.Civ.App.—Waco 1964, no writ); Achille v. Baird, 361 S.W.2d 439 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.). The evidence was legally insufficient to support an inference that the record owner was placed upon notice of the claimed intent of the Sims family to hold the land adversely. Killough v. Hinds, 161 Tex. 178, 338 S.W. 2d 707 (1961); Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).

The Sims family contends in its reply brief that after the taking of the 1929 judgment against it by Perkins, the record owner, its use was not possessory since Perkins was then living on the land, and that when Perkins later moved away, its subsequent use amounted to a re-entry and resumption of possession, citing American National Bank of Beaumont v. Wingate, 266 S.W.2d 934 (Tex.Civ.App.—Beaumont 1953, writ ref’d n. r. e.). We cannot agree with this contention. It is undisputed that the Sims family continued to make the same use of the property after the judgment as it had before its entry. The fact that its use was not then exclusive and was consistent with the use being made of the property by Perkins, merely tends to substantiate the permissive character of such use.

We hold that the trial court properly entered judgment in favor of Mrs. Case, the record title owner, notwithstanding the jury’s verdict on the issues submitted.

Affirmed.