I would affirm the judgment. The excluded testimony of the witness, J. D. Featherston, was merely cumulative. Appellants' witness, L. D. Jones, Jr., a qualified real estate appraiser, who was a member of the American Society of Appraisers, testified at length. He prepared a detailed map and aerial photographs of Gleghorn's property. He physically inspected the property, took numerous pictures, and prepared a soil analysis. He testified to comparable sales. Jones testified that in arriving at the fair market value, he took in consideration the probability of the type of flood it would take to inundate the easement. He stated he had been in Baylor County for fifty years and had never heard or been aware of the water being high enough to inundate Gleghorn's property. Jones said that would be a consideration in arriving at the fair market value of the property. Jones testified that the value of the 469.16 acres in the easement prior to the taking was $46,900 and after the taking was $42,201. The remainder of the property above 1163 ft. m.s.l. Jones valued at $23,300 before the taking and $22,135 after the taking.
Both Jones and Featherston recognized that Gleghorn owned 1600 acres and that all the land was being used as an economic unit, but each upon instructions from appellants, *Page 886 appraised only those acres which were not burdened by the 1922 prior easement. They evaluated only the land above 1153 ft. m.s.l. Under the 1922 easement, which covered 1,077 acres, appellants had the right to store water on the 1,077 acres "when the water in the reservoir above said storage dam reaches the elevation of the level of the spillway in said dam."
Appellants' witness, Fred Parky, general manager of Wichita County Water Independent District No. 2, testified that water had never run over the old 1153 ft. m.s.l. spillway level. He stated that in 1950, during flood conditions, the water got within a foot or two of the spillway and almost got to the 1153 mark.
I do not think the excluded cumulative testimony of Featherston was reasonably calculated to and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P.
In my opinion the instructions given by the trial court did not constitute error.
The first paragraph of the instructions under attack merely tracks the language contained in the Statement for Condemnation and established the purposes for which the easement is taken and the rights acquired.
In the second paragraph the jury is instructed the presumption is that appellants, ". . . Can exercise their rights and use of the 469.16 acres taken from the Defendant to the fullest extent of the rights acquired which are described in this charge, which rights include the right of being submerged by water." (emphasis added)
City of Pearland, supra, cited by the majority, is distinguishable. There the jury was instructed, ". . . to presume that the City of Pearland Will exercise its rights and use and enjoy this property to the full extent for such a sewerage disposal plant." (emphasis added) The trial court had restricted the City from showing the actual uses of the ten acre site which at the time of the taking were reasonably foreseeable and probable. The City was contending, but not permitted to show, that the entire ten acres would not be covered by a plant. Our Supreme Court held:
". . . In our view, this instruction could only be understood by the jury as a mandate to presume a full use of the entire ten acres for an actual plant, rather than as a site for the plant and facilities that would be reasonably required; and as a further directive that in answering the market value issues the jury was to be governed by this presumption regardless of any evidence to the contrary, and whether or not such presumed use of the entire site for an actual plant was reasonably probable at the time of taking and would, or would not, be reflected in the market value of the remainder tract at such time. As such, the instruction was clearly erroneous as a comment on the weight of the evidence."
In the instant case the court permitted both appellants and defendant to show what each contended would be the reasonable and probable uses of the easement. Appellants' witnesses Parky and Jones, testified, in effect, that Gleghorn's property in all reasonable probability would never be submerged by water. Gleghorn and his appraisal witness, Heely, assumed appellants would use the easement to its fullest extent. The court instructed the jury that appellants could use the easement to its fullest extent. The jury was not instructed that appellants would so utilize the easement.
I do not think the instructions constituted an objectionable comment on the weight of the evidence. Rule 277, T.R.C.P., provides:
*Page 887"The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.