City of Amarillo v. Ware

RANDOLPH, J. On September 15,1930, the above case pending on appeal in this court, was certified to the honorable Supreme Court of Texas for their answers to four questions propounded by us to them for our guidance. The questions were referred by the'Supreme Court to the Commission of Appeals for their answers to same, and that court answered three of the questions propounded by us, but declined to answer the fourth categorically “Yes” or “No.” 40 S.W.(2d) 57, 62. By referring to the published answers, it will be seen that the Commission, while declining to answer question No. 4 categorically, did discuss at some length rules which that court evidently considered as a sufficient reply to said fourth question. Hence, accepting such discussion as an answer to our fourth question, we will proceed to decide the matter of law involved in such question as we interpret their answer to same. The Commission of Appeals, in discussing the fourth question, said: “In answer to the fourth question, the record discloses that the plaintiff, having sued for the permanent injury to his land, was entitled to recover as the true measure of his damages claimed the difference in the value of the land immediately before and immediately after the injury. In addition to the damages sustained to his land, he wás entitled to recover as a measure of damages to his then growing crops thereon the difference between the value of the crop just before and just after the damage. This rule has been so well discussed and the authorities bearing thereon , reviewed in the case of Raywood Rice Canal & Milling Co. v. Langford Bros., 32 Tex. Civ. App. 401, 74 S. W. 926, 928, (Writ Ref.), we quote from the opinion as follows: “ ‘The measure of damages in such a case is stated to be 'the difference between the value of the crop just before and just after the damage. In speaking of the value of the growing crop at the time of the injury, of course was meant its value for the purpose of continuing its cultivation to maturity, for in most, if not all, cases, it would be valueless for any other .purpose. In ascertaining its value, proof must be heard either as to the market price or its intrinsic worth, and it follows that any witness who undertakes to speak intelligently as to its value must base his figures upon a sound estimate of what the crop would probably produce if well cultivated and uninjured, and to deduct from that result the cost of cultivation and marketing.’ @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes “It is further said: ‘In Ry. Co. v. Pape, 73 Tex. 503, 11 S. W. 526, Justice Gaines, in a case involving damage to a growing crop, after stating the rule in substance as above, and remarking upon the fact that' usually there would be no market for such a thing, uses the following language: “It follows that in such a case some other method must be resorted to for the purposes of ascertaining its value. It seems to us that, as a general rule, the most satisfactory means of arriving at the value of growing crops is to prove its probable yield under proper cultivation, the value of such yield when matured and ready for sale, and also the expense of such cultivation, as well as the cost of its preparation and transmission to market. The difference between the value of the probable crop in the market, and the expense of maturing, preparing, and piac- ■ ing it there, will in most cases give the value of the growing crop with as much certainty [190] as can be attained by any other method.” It is apparent from the language quoted that our Supreme Court has taken into consideration and adopted the methods which the ordinary witness as to value will naturally and logically employ in speaking to the value of a growing crop, and thus the court is indirectly influenced and controlled in such an inquiry by the estimated yield. The following Texas cases hav.e followed the rule as stated: Ry. Co. v. Borsky, 2 Tex. Civ. App. 545, 21 S. W. 1011; Ry. Co. v. Simonton, 2 Tex. Civ. App. 558, 22 S. W. 285; Ry. Co. v. McGowan, 73 Tex. 355, 11 S. W. 336; Ry. Co. v. Pape, 73 Tex. 501, 11 S. W. 526; Ry. Co. v. Joachimi, 58 Tex. 456.’ See Ry. Co. v. Schofield [72 Tex. 496, 10 S. W. 575], supra; F. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227.” We therefore hold that, as the judgment of the trial court only permitted a recovery of crop damage for the year 1928, the crop destroyed at the time the permanent injury was inflicted on the land, the trial court properly admitted the evidence of the value of that crop destroyed. There was no objection made to the excess of the judgment rendered by the trial court in such a way as to properly present that question for our review, and hence we do not consider same. We therefore affirm the judgment Qf the trial court.