#### CITY OF WACO v. MESSER et al.

No. 1161.

Court of Civil Appeals of Texas. Waco.

March 10, 1932.

Reformed and Affirmed April 21, 1932.

Rehearing Denied May 19, 1932.

*823John McGlasson and George Morrow, both of Waco, for appellant.

B. A. Garrett, Tom Scott, and Kibler & Valentine, all of Waco, for appellees.

ALEXANDER, J.

Tbe city of Waco brought this suit to condemn certain property for tbe purpose of widening a street. J. B. Messer owned a life estate in tbe property, Mary Lee .Messer owned tbe remainder estate, and A. H. Parker owned an unexpired lease on tbe premises. Tbe jury found tbe value of tbe property taken to be $1,500, and apportioned $1,000 to J. B. Messer and $300 to Mary Lee Messer. It found tbe value of Parker’s lease to be $150. Judgment was entered against the city in favor of J. B. Messer for $1,000, Mary Lee Messer for $500, and A. H. Parker for $150. The city appealed.

Tbe city complains of tbe manner in which tbe court submitted to the jury tbe value of tbe property condemned. Tbe first issue as submitted was as follows:

Special issue No. 1:

“What do you find from a preponderance of tbe evidence was tbe reasonable market value of tbe 25x125 foot strip of land with tbe improvements thereon taken by tbe City of Waco from tbe property located at 4th and Jefferson Streets belonging to defendants on March 18, 1931?

“In estimating such value you may take into consideration tbe value of tbe lease of tbe stand on said land, tbe value of said stand, itself, tbe shade trees and that portion of tbe garage and barn actually taken and destroyed, as shown by tbe evidence herein, if any, but you shall not take into consideration in answering this question any value of said stand and lease to tbe defendant, A. H. Parker.”

To which tbe jury answered $1,500.00.

Tbe court submitted a separate issue as to the value of tbe lease, and tbe jury found such value to be $150.

 In condemnation proceedings, where there are different estates in tbe property or where tbe property is under a lease to a third party, tbe valuation of tbe various estates or leasehold interest is usually determined by ascertaining the market value of the property with tbe improvements thereon as though owned exclusively by one party, and, in tbe absence of damages to other property not taken, this will ordinarily determine tbe extent of tbe liability .of tbe party condemning tbe property. Such amount, when so determined, should then be apportioned among tbe lessee and tbe owners of tbe various estates in tbe land. Where it is undertaken to first determine tbe valuation of the various interests separately, tbe total valuation of such interest should ordinarily not exceed tbe value of tbe property as though owned exclusively by one party. Tbe party condemning tbe property should not be required to pay the value of the property with tbe improvements thereon, and, in addition thereto, tbe value of tbe lease. 16 Tex. Jur. 980, § 302; note, 69 A. L. R. 1263.

Tbe explanation following special issue No. 1 above quoted makes it doubtful whether tbe jury in answering tbe issue found tbe full value of tbe land taken with tbe improvements thereon, or whether tbe jury deducted from such value tbe value of tbe lease. If tbe former, then tbe judgment in favor of tbe Messers for $1,500 and in favor of Parker for $150 was a double recovery, and was excessive in tbe sum of $150. We are of tbe opinion that the question as submitted called for tbe jury’s verdict as to tbe value of tbe property with tbe improvements thereon. This requires a reversal of the case.

No particular complaint was made with reference to tbe issue submitting tbe value of Parker’s interest in tbe property. However, tbe value of bis interest is necessarily related to the value of the whole property. If upon another trial tbe jury should assess a different value for tbe whole of tbe property taken, this might materially affect tbe value to be placed on Parker’s interest. We therefore deem it advisable to reverse and remand tbe whole case. Irwin v. Auto Finance Co. (Tex. Civ. App.) 40 S.W.(2d) 871, § 6; Buchanan v. Davis (Tex. Civ. App.) 43 S.W.(2d) 279, § 12. Upon another trial, unless tbe evidence raises some exception to tbe general rule for fixing tbe measure of damages, tbe court will ascertain tbe market value of tbe property taken as though owned exclusively by one party, and will have tbe jury apportion tbe amount thereof among tbe tenant and others owning an interest in tbe property as their interest may appear.

The judgment of tbe trial court is reversed, and tbe cause remanded for a new trial.

On Motion for Rehearing.

Tbe appellees J. B. Messer and Mary Lee Messer having filed herein a remittitur of $150, the judgment of this court reversing tbe judgment of tbe trial court is set aside, and tbe judgment of tbe trial court is reformed to tbe extent that the judgment in favor of J. B. Messer is reduced to $900, and tbe judgment in favor of Mary Lee Messer is reduced to $450, said judgment to bear interest at tbe rate of 6 per cent, per annum from April 17, *8241931. The judgment in favor of Parker will remain unchanged.

The judgment of the trial court as reformed is affirmed.