ON MOTION FOR REHEARING
On motion for rehearing, the City complains of our failure to discuss its second point of error asserting that the trial court erred in excluding certain evidence which the City says was sufficient to show that the parties themselves did not consider the nursery stock as a permanent part of the land. The City argues that the excluded testimony was sufficient to at least raise a fact issue upon the question of whether *814or not the parties intended to treat the nursery stock as removable personal property and that the trial court erred in refusing to admit such testimony.
The testimony referred to was from the testimony of two of the three special commissioners who heard the case, and is before us by way of a bill of exception. One of the commissioners, R. D. Allen, testified that at the time of the condemnation hearing, the question was brought up as to whether it would be permissible for Arp Nursery to remove the seedlings and grafted trees and that Troy Smith, the city attorney, told the owners of the Arp Nursery that they could remove them. He also testified that he, as a commissioner, “understood” that permission or consent was given the landowners to remove the seedlings and grafted trees. Upon being asked as to what his understanding was as to whether or not Arp Nursery would remove them, he said “Well, I don’t know. We assumed that they would move them.” The other special commissioner, Harold Phipps, testified that during the hearing he overheard a conversation between the city attorney and L. A. Dean, one of the landowners, with reference to the removal of the seedlings and grafted trees. Although he said he could not remember the exact words, he testified: “I believe Mr. Smith was asked if it was possible for them to take the growing stock off the land and how much time they had and he said ‘Yes’, that there would be no opposition to them handling it in that way. At that time, they estimated it would be approximately 2 years before the lake would encroach on the property.”
The general rule is that things permanently affixed to the realty by the vendor such as growing crops and trees are not removable but pass to the vendee in the absence of an agreement to the contrary. 25 Tex.Jur.2d 408, Sec. 15, Fixtures; Ft. Worth & D. S. P. Railway Co. v. Gilmore, supra; 92 C.J.S. Vendor and Purchaser § 287.
As we view it, the foregoing testimony falls short of showing an agreement between the parties changing the status of the nursery stock from realty to personalty. While the testimony may be sufficient to show that the city so agreed, there is absolutely no testimony that the landowners agreed to accept the nursery stock as personalty and remove the same from the land. In the absence of an agreement, agreed to by both parties, we do not believe that the city could unilaterally tender the nursery stock to the landowners and then rightfully insist that the owners would be fully compensated by payment for the naked land. State v. Miller, supra. Since the record fails to show that the landowners agreed to such an arrangement, the excluded testimony showing nothing more than a unilateral agreement on the part of the City was immaterial. Hence we fail to see how the action of the trial court in refusing to admit it into evidence would constitute error.
Motion for rehearing is overruled.
McKAY, J., not participating.