(dissenting).
I find I am unable to agree with my associates in their disposition of this cause.
This is a condemnation proceeding by appellant City against appellee Hallum and wife as owners, and the American National Bank of Oak Cliff as a lien-holder, involving the fee simple title to a strip of land off the Wall Street side of appellees’ property bounded by Lamar Street, Wall Street, and Grand Avenue, to widen Wall Street in connection with the Central Expressway-Wall Street Connection where Lamar Street and Wall Street angle together and merge in appellant City. '
The trial court duly appointed Commissioners who assessed the damage and from their award appellees filed objections and duly appealed to the County Court of Dallas County at Law No. 1. The City then placed in the registry of said County Court the amount of the Commissioners’ award, $3,500, and entered into possession of the land and has remained in possession down to date. Shortly after such deposit, ap-pellees withdrew the same and are still in possession of such deposit. On a trial in the County Court of Law No. 1, the value of the land taken was found by the jury to be $4,296 and the damages to the land not taken to be $8,000. The trial court entered judgment on the verdict for $12,-296, costs, etc., and this appeal has been duly perfected from that judgment, and appellant City briefed four points of error.
Point 1 asserted error in overruling its objection to a motion to instruct the jury to disregard evidence given by the witnesses Maxine Hallum, Lee N. Holsomback and L. E. Wilson as to. damages growing out of the closing of Lamar Street. This point was countered in substance that there was no error in overruling appellant’s motion since (a) the motion was too broad and was to include all evidence on cross-*440examination given by the named witnesses; (b) motion was not made until the third day after the trial and after all the evidence had been admitted without objection by appellant; (c) motion was made after the City had brought out and developed nearly all this evidence; and (d) trial court ruled that no testimony would be admitted concerning the fact that Lamar Street had been closed at any place.
The statement of facts discloses that Lee Holsomback, an expert witness on real estate values, material here, testified on direct examination that while employed by the City he examined this property, attempted to ■ negotiate with the Hallums to acquire the strip necessary for widening Wall Street; detailed his investigation around this property and values in the vicinity; then gave his opinion that the land taken, considered as severed land, was of a reasonable cash market value on March 27, 1951 (3148 sq. ft.) of $3050 ánd the improvements taken worth $200. He also testified the value of the part not taken before the taking was $15,946.60 for the land arid'after the taking was $17,406.50 J that the value of the buildings before the taking was $27,000; the -value after the taking was $26,800. . ■ ■■
The witness L. E. Wilson, a- realtor,, testified that he had handled, in the last few years, largely, business property, some residential and suburban property; that he was a merpber .of the Dallas Real Estate Board and the State Board; that.he appraised the property in question as follows; The land taken, by.the City (2163 sq. ft.) was at the- time of the taking worth $1.50 per sq. ft., totaling $3,245; that the land was not of such.shape that he could put a front-foot value on it, — only a sq. ft. value; that the value of'the remainder of the land was of a reasonable cash market value .of $1.50 per sq. ft.; .further testified he was of the opinion that the value.per sq. ft. after the taking was- more than it was be-, fore the taking. He testified that he -gave evidence more for condemnors than for condemnee's; testified on cross-examination by appellees’- attorney without objection that the-front of this, drive-in-fronts on and faces Lamar Street; that the more traffic passing in front of the property, the more trade they would have, the better the property is'for a drive-in, and the more valuable it is for their purpose; that prior to the taking here Lamar was a very heavy street insofar as traffic is concerned; and as follows:
“Q. Now, would you tell the jury what the flowage of traffic is on it now? A. Well, Lamar Street is dead-ended, they closed it at the railroad.
“Q. It is dead-ended? A. Plenty of traffic on Wall Street; more on Wall Street, in my opinion.
“Q. All right. Now, the deadend is just about a quarter or half block north • of Grand Avenue, isn’t it? North of the tracks? A. Well, I would say it is a good long block.
“Q. Now, is there a sign there on this block anywhere telling the traffic that the street is closed? A. Yes, sir.
“Q. There' is a sign there? A. Yes, sir.
“Q. And does that affect the traffic going into Lamar Street ? A. Sure, it affects the traffic going into Lamar Street.
“Q. That practically seals the traffic from flowing on Lamar Street ? A. ■ The through traffic, yes, they don’t go up Lamar Street.” He had only appraised the land, not the buildings. He further testified -that the bulk of - traffic now flows on Wall Street, the east side of the Plallum property instead of the west Lamar Street side; that traffic devices have now been installed on Wall Street; that automobiles drive .in and park at the same place they were parking before, except for that portion taken by the City. There was .a curb line, but no side walk on Wall Street before this project was commenced; the curb is still there, but moved back, and there is now. a side walk- on the Wall Street side. • -
Mrs. Hallum, an appellee, and wife of E: P. Plallum, testified in substance that she and her husband are owners of Cow*441boys Restaurant on South Lamar; they acquired it in 1945; it is open for business 24 hours a day; is presently, a drive-in; building faces ón Lamar; and as follows:
“Q. Have any- customers ever come in through the Grand Avenue side or the Wall Street side since you have had the place, Mrs. Hallum? A. I have never had the door unlocked on the Wall Street side, and never had a customer come through; I do have customers come through frpm the Grand Avenue side, but not the Wall Street side.”
The witness also testified:
“Q. Now, Mrs. Hallum, before the taking in this case, where did your traffic flow, around your place of business? A. Mostly on Lamar Street.
“Q. On Lamar Street? A. Yes, sir.
“Q. All right, if you look at it, this map here, then the traffic flowed on Lamar Street, is that right? A. Yes, sir.
“Q. That was before the taking? A. Yes, sir.
“Q. Now, before the taking, Mrs. Hal-lum, could you tell the jury approximately how many customers you had in your place of business prior to the taking on the average per day prior to the time of taking? * * * A. I had eight to nine hundred a day.
“Q. Eight to nine hundred? All right, now, Mrs. Hallum, after the taking in question, did the traffic continue to flow on Lamar Street as it did before? A. No, sir.
“Q. Where did the traffic flow? A. Down Wall Street.
“Q. On the back of the property on Wall Street, is that right? A. That is right.
“Q. All right, are there any signs on this block anywhere that tell the people that the street is open or closed? A. Yes, sir.
“Mr. Shurette: Now, your Honor, we object to’ such a question as that because if is not shown - for what purpose he is attempting to show the sign,'and -we would like to discuss it with the Court,, if the Court sees fit.
“The Court: All right, come on up. (Discussion at the Bench, outside the hearing of the Reporter.)
“Q. (By Mr. McKool): I show you what has been designated as Exhibit No. 23 and ask you if that accurately and correctly portrays the front of your property before you get to it there at Lamar and Wall Street? A. Yes, sir.
“Q. And does that accurately and correctly portray the signs there? A. Yes, sir.
“Q. That has been accurately portrayed that way since the time of’ the taking? A. Yes, sir.
“Mr. McKool: We introduce in evidence the defendant’s Exhibit No. 23.
“Mr. Shurette: Now, your Honor, we object to the introduction of this out of this picture with reference to the sign, because of the statement that it has been there ever since the date of the taking. I have said before we would like to discuss it, and we would like to have our bill with reference to this — the introduction of this picture.
“The Court: All right, step outside in the hall, Gentlemen of the Jury. You will have time to go get a coke.
“Mr. Shurette: .Do you want us to dictate our bill?
“The Court: Well, I want to hear some discussion about it first; I think that the objection made about ‘since the date of taking’ is a good objection. I don’t believe this sign has been there since November 21, 1951.”
..There is no question but that Lamar Street was closed about a city block from the property in question sometime after the *442condemnation and the taking of the strip of land. The evidence of, the closing of Lamar Street would not have been admissible if proper objection had been made when it was first offered, involving, as it did, only compensation and damages at the time of the taking. The point and counterpoint raise only the question of whether or not the error in the court’s ruling was rendered harmless by other similar evidence in the record theretofore admitted without objection. In my opinion it was. In 27 T.L.R. 708, Reversible Error in Texas Civil Procedure, the writer, in my opinion, properly concluded (at page 712) that: “From a review of the cases construing Rules 434 and 327, it appears that the Supreme Court has gone far toward bringing litigation to a speedy and just conclusion by conditioning reversal upon a showing by the appellant that injury probably resulted to him from the error, even in instances where previously the doctrines of ‘reasonable doubt’ and ‘presumed harm’ obtained.” See also Ball v. Yowell, Tex.Civ.App., 222 S.W.2d 277, error ref. n. r. e.; Steinke v. Schmid, Tex.Civ.App., 223 S.W.2d 955; Rowe v. Liles, Tex.Civ.App., 226 S.W.2d 253, error ref.; Shock v. Mrs. Ragsdale’s, etc., Tex.Civ.App., 228 S.W.2d 353, ref. n. r. e. Point 1 should have been overruled.
Point 2 asserted error in allowing, over appellant’s objection, the witnesses Cole, Knapp, and Cowley to testify concerning the diversion, or loss of flow of traffic, as an element of damage in arriving at the value of the land taken and damages to the remainder after the taking. This point was countered that the trial court did not err in allowing these witnesses to testify as to the functional utility of the property in question and the flow of traffic on Wall Street as a result of the combination in question. Cole, Knapp and Cowley testified after the witnesses Hallum, Holsom-baclc and Wilson. Cole, that he was a real estate broker and appraiser and had been since July 1949; was a member of the Dallas Real Estate Board; that he made an inspection and appraisal of the property in question, and after testifying to numerous specific facts regarding the value of this property, placed the reasonable cash market value of the strip of land on Nov. 27, 1951 at $4,296; the value of the total property here involved on that day at $58,-926; and value of all the land, less only the strip taken by the City, at $54,630; that after the taking the remainder, considering the use to which the strip taken was to be used by the City, etc., was of a reasonable market value of $30,630, and the severance damage to be $24,000; he based such estimate on the fact that the property can no longer be put to its best use, resulting from loss of access to the property; that is, that it fronts on a dead-end street; resulting in a loss of flow of traffic on Lamar Street. The court sustained the objection to that portion of the answer as to loss of flow of traffic on Lamar Street and instructed the jury to disregard the answer. The statement of facts shows that the following took place:
“Q. (By Mr. McKool) Does that sign being there have any effect upon the access or the flow of traffic into the property in question? A. It does.
“Mr. Shurette: Now, your Honor, we offer the same objection to this photograph that we offered to the other, that it has been shown that the photograph was — the sign he refers to was placed there as a result of an action not connected with this condemnation suit.
“Mr. McKool: I understood you to rule that was all right, Judge.
“The Court: Yes, I will overrule the obj ection.
“Mr. McKool: Thank you, sir.
“Mr. Shurette: We would like to point out further that the sign was not here; the evidence by his own witness is to the effect that the sign was not there when the tract of land was severed, when the City of Dallas took it, it shows a condition different from the date of taking.
“The Court: Overruled.”
*443In my opinion it would have been error to admit in evidence the testimony with reference to the closing of Lamar Street to traffic if proper objection had been made when the matter was first offered in evidence since other portions of the record show that Lamar was not closed until after the property was taken by the City. The evidence, although not, on proper objection, admissible, was first admitted here without objection by the City. The evidence being before the jury without objection, its admission later, over objection, was harmless unless the cumulative effect was of such a nature that, notwithstanding the prior evidence, it itself in some material way directly affected the verdict. In my opinion, taking all the evidence together, the evidence admitted without objection and its effect on the jury made harmless the evidence afterward admitted as shown by the record here. Turner v. Hodges’ Estate, Tex.Civ.App., 219 S.W.2d 522. Point 2 should have been overruled. .
Point 3 asserted.error in admitting over its objection, in connection with the closing of a portion of Lamar Street, evidence, on damage to the remainder of the property, when the closing of Lamar Street was not a part of this condemnation proceeding, but a separate and independent act of the City which occurred more than two years after the date of the taking in November 1951, and the trial court had no jurisdiction to award damages for said closing in this condemnation suit or any other suit in this court. Point 3 is countered that appellant City brought out and developed most of the evidence pertaining to the closing of a. portion of Lamar Street, and the trial court therefore did not err in admitting in evidence over appellant’s objection such evidence in connection with the closing of a part of Lamar Street to prove damages to the remainder of ap-pellees’ property. The record shows, as heretofore stated under other points, that the evidence here complained of was admitted without objection and we cannot hold that the evidence here complained of added to or took from the evidence already before the jury without objection. The admission of the evidence complained of, over objection, after other evidence of the same nature and purport had been admitted without objection, was not under the record here reversible error. City of Teague v. Stiles, Tex.Civ.App., 263 S.W. 2d 623, ref. n. r. e. Point 3 should have been overruled.
Point 4 asserts error in allowing appel-lees’ witness Cole to testify as to the value of the property taken' arid as to the value of the remainder when such witness’s testimony was based on the value as of Dec. 1953, when the land was in fact appropriated in Nov. 1951. The point is countered that the court did not err in allowing the witness to so testify since Cole based his evidence of value as of November 1951. Cole, as an expert witness, testified that he knew the reasonable cash market value of the land taken by the City on Nov. 27, 1951, and that it was $4,296; that the value of all the land and all the improvements on Nov. 27, 1951 was $58,926 and the value of all land and improvements exclusive of the strip condemned immediately before the strip was taken for street purposes on Nov. 27, 1951, was $54,630, and excluding the increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by the defendants in common with the community generally and not peculiar to them and connected with their ownership, use, and enjoyment of the particular tract of land and all of the improvements located thereon, across which the strip of land has been condemned, and taking into consideration the uses to which the strip condemned is to be subjected, that the reasonable cash market value of the remainder of defendants’ land and all of the improvements located thereon immediately after the taking of the strip condemned for street purposes, was $30,630. After Mr. Cole gave the above testimony in answer to a question propounded to him by Mr. Shurette on cross-examination, Mr. Cole replied that the date of taking was in December 1953. The questions propounded to Mr. Cole were as follows:
*444“Q. All right, sir, at what figure, how did you arrive at' that figure ? A. . $2.00 a square foot.
“Q. $2.00 a'square foot. All right, sir. Now, at whát time, — at what date did you use in arriving at your valus of $2.00 a square foot? A. Í used the date at thé time v it was' taken there.
“Q. Well, do you know what the date of the taking was? A. It was in'-December of 1953.” Thereupon, Mr. McKool, attorney for appellees, stated to the Court: “I know but I asked him the question as of November 1951, he gave me an answer to that date. There is a conflict that needs to be straightened out.” Mr. Cole tried to explain this conflict and when Mr. Shurette asked him what date he used- in arriving at his figure of $54,630, he replied: “That was in November 1951. I would like to make a statement if I may.” Then, when Mr. Cole was asked by Mr.. Shurette why he did use the date of December 1953, Mr. Cole -replied: “Because it was in December of 1953 that .it was actually , completed - through there and that is why I brought-that date into it.” On redirect examination, the following questions were propounded to Mr. Cole:
“Q. Mr. Cole, the figure that you gaye about the value of this tract, the strip that they took, was that based upon the value as of November 1951, that is what it was worth at that time, that they took-it? A. Yes, sir, that is right.
“Q. And it was worth $4,296 on November 27, 1951, being the date that they took the property? A. That is right. * * *
“Q. (By Mr. McKool) Tell -the jury as to what date you figured on the value of the whole thing exclusive of this strip prior to the taking, what did you use? A. November 1951.
“Q. All right, now, do you know approximately when the street here, the land here, was actually taken and the street was opened on. Wall Street? A. Yes, sir, I do. . ■
“Q. When was that, sir ? A. That was in December of 1953.
“Q. Was thát where the complication came in with the question you were asking him ? A. Y es,' sir.
“Q. All right, now, as of—
“Mr. McKool: Well, Judge, we had to straighten up the confusion.
, ‘-‘Mr. Shurette: Well, he has gotten himself confused, not us.
“Q. (By Mr. McKool) All right. Now, Mr. Cole, as of November 21, 1951, knowing that this land was going to be taken, and knowing what the best use of the property was going to be, and what the situation is after that as of that date, what is the value of the remainder of the property as of that date of November 27, 1951? A. $30,630.
“Q. All right, and in your opinion, you said that is the value — that date — in your opinion, is that still the value today? A. Yes, sir.
“Q. So, in your opinion, it still has practically the same value today as then? A. That is true.”
• On the record, point 4 was properly overruled.
The present -majority opinion does not. pass on appellees’ counterpoint which complains of the disposition of appellant’s preliminary motion or application -for a stay order to prevent appellee landowner from enforcing -the County Court judgment for the difference between the amount of the award of the Commissioners and the judgment of the -County Court, pending this appeal, which motion was passed and thereafter considered'with the merits.
. What this Court said in Housing Authority of City of Dallas v. Dixon, 250 S.W.2d 636, syls. 2, 3, at pages 637-638, error ref. n. r. e., is controlling here. See also Thomas v. Housing Authority of City of Dallas, Tex., 264 S.W.2d 93, on the property owner’s right to further prosecute *445his suit after withdrawing the amount of the Commissioners1 award.
Art. 3268, V.A.C.S., provides in its last paragraph that “If the cause should be appealed from the decision of the county-court, the appeál shall be governed by the law governing appeals in other cases; except the judgment of the county court shall not be suspended thereby.” The legislative purpose and intent in Art. 3268 was to allow immediate, possession of the land sought to be condemned, if, and only if, the Constitutional prohibition, Const. Art. 1, sec. 17, Vernon’s Ann.St., against taking before payment is met, and therefore to permit the enforcement ofthe County Court judgment, less the amount theretofore , paid on the Commissioners’ award, pending further appeal, if the condemnor desires to remain in possession^ the con-demnor should pay the amounts set by .the trier of the facts before the condemnor could further hold possession pending final determination" of the correct amount. This is shown by another provision in Art. 3268 which provides that in addition to the provision that the County Court judgment shall not be suspended by aft appeal, that “where the award paid the defendant or appropriated by him exceeds the value of the property as determined by the final judgment, the court shall adjudge the excess to be returned to the plaintiff.”
A careful reading of. the Hornberger case, cited by the City, will disclose that it is not in point. The Hornberger case is between a judgment for damages as here, and a judgment in favor of the landowner for possession of the land based on findings of no right in condemnor to condemn the property. The Hornberger holding does not in any way conflict with the holding in the Dixon case to the effect that payment is a prerequisite to a taking and holding, and allows the drawing down of the deposit with the Clerk before final judgment, when a final adjustment of the damages is finally made, as provided in the statute.
I therefore-respectfully dissent'to the holding in the original opinion and in the substituted opinion by Justice YOUNG on the motion to require appellant City to pay the amount of the trial court judgment, since at the time of such judgment appellant had theretofore taken, and was in possession of, the land sought to be condemned, and was refusing to pay the full amount of damages fixed by the judgment then in effect. ; ■
. In my opinion, the mandamus should have issued commanding appellant -City to either pay the County Court judgment or return the land to appellees, pending further orders of the court, or final judgment in the cause.
Believing that the judgment of the trial court should have been affirmed, I respectfully dissent from the judgment reversing and remanding this cause for a new trial on the merits. I further dissent from the implied holding in the opinion by Justice YOUNG and the concurring opinion by Chief Justice DIXON for the reason that the preliminary motion should have been sustained and the judgment of the trial court enforced by proper process, pending final judgment which would, of course, conform to the provisions of Art. 3268, V.A.C.S., which provides that the County Court judgment is not suspended by this appeal.