
    CURRIE et al. v. GLASSCOCK COUNTY.
    (No. 986.)
    (Court of Civil Appeals of Texas. El Paso.
    May 22, 1919.)
    1. Eminent Domain &wkey;>103 — Damages to Property Not Taken — Additional Fences and Improvements.
    Where construction of a road necessitated additional fencing and the establishment of an additional watering place to restore abutting land to former usefulness, and value, for grazing purposes, the district court on appeal from award of jury of view erred in finding that there was no evidence of depreciated value of land not taken.
    2. Eminent Domain <&wkey;203(l) — Damages to Property — Evidence—Cost op Fences.
    In proceeding to determine the amount of damages due to construction of a road, evidence of the cost of additional fencing, establishing watering places and other items of like nature necessitated by the laying of the road is admissible and entitled to be accorded its proper probative force in determining whether tract of land as a whole has been damaged.
    3. Eminent Domain &wkey;>145(4) — Damages Due to Establishment op Road — Oppset op Benefit.
    In proceeding to determine the amount of damages to land due to construction of a road by appellee county, increased and better road facilities could be taken into consideration as offsetting damages to land not taken.
    4. Appeal and Error <&wkey;994(3) — Province op Court Trying Case — Credibility op Witnesses.
    The credibility of witnesses and the weight to be given to their testimony was to be judged by the court who was trying the case without a jury.
    •5. Eminent Domain &wkey;>205 — Weight op Evidence — Benefit and Injury prom Highway.
    In proceeding to determine the amount of damages due to construction of a road, failure ■of court to recognize evidence of value to tract as a whole, and evidence of decrease in value due to road, as of any probative force upon issue of damage to land not actually appropriated, was reversible error.
    6. Eminent Domain <&wkey;>238(4) — Appeal prom Award op Jury — Appeal Bond.
    The road in question being laid out under Rev. St. arts. 6863, 6864, appeal to district ■court from award of jury of view is governed by article 6866, which does not require bond to be filed in ten days after approval of award by •commissioners’ court, and not by article 6882.
    Appeal from District Court, Glasscock ■County; Chas. Gibbs, Judge.
    Controversy between Lucy Currie, executrix, and others and Glasscock County. From the judgment rendered on appeal to the district court, the former appeal. Reversed and remanded.
    See, also, 183 S. W. 1193.
    Royall G. Smith, of Colorado, Tex., for appellants.
    Morrison & Morrison, of Big Springs, for appellee.
   HIGGINS, J.

Appellants own a tract of land in Glasscock county comprising 24 sections which was used for grazing purposes and by cross-fences was divided into several inclosures. The various indosures 'were amply watered, principally by wells with windmills. The commissioners’ court of said county caused to be laid out through the land a first-class road from Garden City, its county seat, to the eastern boundary of the county in the direction of the county seat of Sterling county, an eastern adjoining county. Damages being claimed by appellants, a jury of view was appointed which assessed the same in the sum of $1,640, which was approved by the commissioners’ court. Appellants, being dissatisfied with the award, appealed to the district court, where the cáse was tried without a jury. Findings of fact and conclusions of law were filed by the court, and judgment thereon rendered in favor of appellants for $1,640, from which they prosecute this appeal. Other facts pertinent to the decision will be indicated .in the course of the opinion.

Opinion.

The various assignments will not be discussed separately, as they all relate to, and their decision is controlled by, one question.

Damages were claimed by appellants for the value of the land actually taken by the road and depreciation in value of the remainder of the tract. The court found that the land was used for grazing purposés,” and the pastures therein had been arranged so as to give the most beneficial use thereof, and that such pastures were watered ■ by windmills, tanks, and wells; that by the establishment of the road appellants had been obliged to rearrange the pastures, necessitating the construction of 16 miles of fence, which cost $880; that the value of the land actually taken was $510; that in order to provide for the beneficial use of the land the pastures had been rearranged to conform to the road, and that it was necessary to establish one additional watering place which would cost $500. The court found that no evidence had been offered as to whether the land had been rendered more or less valuable by the establishment of the road, and that he was therefore unable to determine whether appellants had been benefited or injured by the road; that, since the burden rested upon appellants to show depreciation in value and ttie extent thereof, and there being an absence of proof in that particular, recovery could not be had by appellants in a greater sum than $1,640, which the county admitted to be due as damages, and which sum exceeded the value of the land actually appropriated.

We are of the opinion that the court erred in its finding of fact and conclusion of law that no proof had been offered to show depreciation in value. The fact that the Toad necessitated additional fencing and establishment of an additional watering place in order to restore the land to its former usefulness and value for the purpose for which it was used by the owner was evidence of a depreciated value. The cost of additional fencing, establishing watering places, and other items of like nature necessitated by the laying of the road do not constitute a measure of damage and are not recoverable as distinct items of damage, but evidence of this nature is admissible, and is entitled to be accorded its proper probative force in determining whether the tract of land as a whole has been damaged. These are matters which may and should be considered by the jury or court trying the case. In like manner increased and better road facilities may be taken into consideration as offsetting such damage. In 3 Sedg. on Dam. § 1163, it is said:

“The measure of damages must not be confounded with the elements of damage, evidence of which is admitted for the purpose of enabling the jury to apply the rule. * * * The measure of damages in condemnation proceedings, stared in one of its most general forms, is the depreciation in the value of the property; for this is the same as the amount of injury to it. The value is most easily measured by the market, when there is one. Consequently, as we have seen, the rule with which we most commonly meet is the difference between the market value of the pr'oporty as affected and as unaffected by the improvement, or before the improvement, and as it will be after the improvement is completed. As a general rule, under any head of the law, where the measure of damages is determined by a difference in market value, it cannot be a matter of any consequence of what elements this is made up, and evidence giving the market value before and after the injury would be quite sufficient. * * ⅜ Land, however, has in many cases a very indeterminate market value, especially farming or wild land, such as is involved in perhaps the greater number of condemnation. proceedings. Hence, it has become the practice to take evidence, not only directly as to the market value, but as to every element which enters into it, and tends to diminish it. * * ⅜ These elements of damage ánd value are neither the measure of damages, nor are they allowed as specific items of damage. They go to the jury only to throw light on the jeneral question of depreciation.”

In support further of the views expressed, see Parker County v. Jackson, 5 Tex. Civ. App. 36, 23 S. W. 925; Morris v. Coleman County, 28 S. W. 380; Anderson v. Wharton County, 27 Tex. Civ. App. 115, 65 S. W. 643; Bexar County v. Herff, 23 S. W. 409; Watkins v. Hopkins County, 72 S. W. 872. The facts found by the court disclose that evidence was offered by appellants upon the issue of damage to the tract as a whole. It further appears from the statement of facts that one witness for appellants testified -that the cutting off of three-fourths of a section decreased the value of the whole section a dollar an acre, or $640.

What has been said is not to be understood as holding that the court must necessarily have accepted as true the evidence adduced by appellants to which we have alluded. The credibility of the witnesses and the weight to be given to their testimony was to be judged by the court. The reversal is based upon the error in the failure to recognize such evidence as being entitled to any probative force upon the issue of damage to the land not actually appropriated.

By cross-assignment appellee asserts that the appeal to the district court from the award of the jury of view was not perfected, and the district court did not acquire jurisdiction, because the bond was not filed in ten days after the approval of the award by the commissioners’ court. The road in this case was laid out under the provisions of articles 6863, 6864, R. S. The appeal is governed by article 6866, and not by 6882. Taylor v. Travis County, 77 Tex. 333, 14 S. W. 137; Moody v. Hemphill County, 192 S. W. 265. Article 6866 does not require the bond to be filed in ten days.

Reversed and remanded. 
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