(dissenting).
I respectfully dissent.
The Alexander tract contains 822.21 acres; it is bounded by Clear Creek on the east and on the west by over a half mile of frontage on Farm-to-Market Road 518. *250This is the largest undeveloped tract left in the City of Pearland. The tract is surrounded by residential development. The jury found that the value of the tract taken was $22,000, or $2,200 per acre. There is ample expert opinion testimony to the effect that the highest and best use of the remainder would be for residential purposes.
The 10-acre site that was chosen for the sewer plant was located in the approximate center of the east line of the subject property. The plant located thereon is within clear view from almost every point on the remaining tract and from the Farm-to-Market road. Opposite this tract on the west side of the Farm-to-Market road is a shopping center. Extending from the sewage disposal plant on the east side of the tract, the 40 foot wide road easement extends to the west line and divides the large tract. Under the road easement extends the trunk sewer line.
The City’s first sixteen points contend that the Court of Civil Appeals erred in not holding that the Trial Court erred in sustaining the landowners’ Motion in Lim-ine, its rulings on the admissibility of evidence consistent therewith, and its approval of an instruction given in the charge to the jury concerning the same matter.
The City complains of the order of the court sustaining the Motion in Limine which reads as follows:
“It is legally presumed that Plaintiff will exercise its rights in regard to the entirety of the surface estate of the 10-acre tract . . . for use as a sewage disposal plant site, to the fullest extent and for the highest use for which it is taken, and Plaintiff is hereby prohibited from introducing any evidence to the effect that less than the full ten acres will be used for such a sewer plant.”
The error of the majority opinion in intimating that the Motion in Limine granted by the Trial Court was improper is clearly evidenced by the Plaintiff’s (City of Pear-land) requested instruction No. 2 quoted below:
“In answering Special Issue No. 6, you are instructed that the term ‘uses to which the condemned parcels are to be subjected’ means use of the ten acres of land as a site for a sewage disposal plant and use of the 2.04 acres of land as a public street. Use for a sewage disposal plant includes erection and maintenance of structures for the disposal of sewage and all uses which are reasonably incidental thereto, such as open spaces for light, air, and appropriate ornamentation, landscaping, drives for vehicles and walks for pedestrians, automobile parking areas, areas for repair and replacement, storage facilities, and recreational areas for employees. Use for a public street includes the right of the public, including the defendants, to walk and drive vehicles on the street and uses incidental thereto.” (Tr. 41.). [Emphasis added.]
It should be obvious that upon retrial of this case the City and its witnesses will testify as to the “open spaces and light, air, and appropriate ornamentation, landscaping, drives for vehicles and walks for pedestrians and recreational areas for employees.” Is the City saying, “I promise you a rose garden” ? By sustaining the Motion in Limine the Trial Court properly prevented such promissory statements.
The true issue in this case is whether or not the proper amount of severance damages has been awarded for damages to the remaining properties. The sufficiency of this evidence has been passed upon by the Court of Civil Appeals. We have “no evidence” points before this Court. The majority opinion does not suggest that there is no evidence to support the jury verdict.
The City also complains of the following instruction contained in the Court’s charge:
“You are instructed that the surface estate of the ten (10) acre tract of land *251condemned by the City of Pearland in this case and described as Tract One in the evidence before you will be used by the City of Pearland as a site for a sew [er] age disposal plant and you are to presume that the City of Pearland will exercise its rights and use and enjoy this property to the full extent for such a sew[er]age disposal plant.”
A similar instruction has been approved at least twice by a Texas appellate court. City of Corpus Christi v. Polasek, 404 S.W.2d 826 (Tex.Civ.App.1966, n. w. h.); City of Corpus Christi v. Nemec, 404 S.W.2d 834 (Tex.Civ.App.1966, n. w. h.).
Nowhere in that instruction does the Court instruct the jury that they must presume uses of the tract most injurious to the remainder or presume most value depressing uses. The testimony of the landowners’ value witnesses was not predicated on the presumed most damaging use or that a plant would be constructed on every square foot of the ten acre site. It is undisputed that the entire ten acres at the time of trial was being used for a sewage disposal plant. The entire 10-acre site is enclosed by an unattractive cyclone fence. This constitutes “full use of the premises” as contemplated by the instruction. Contrary to the observation in the majority that the jury must presume “full use,” it is undisputed in this record that the entire 10-acre tract is now in “full use” by the City of Pearland.
Although the City has alleged the necessity for a 10-acre site for sewage plant purposes and had admitted that it has the right to use the entire surface for such purpose, the City nevertheless contends that it has the right to offer evidence to show “in all reasonable probability” it would not exercise its full rights “in the reasonably forseeable future.” The City by its pleadings has never limited or restricted its right to use the entire surface for sewage plant purposes. If it had no intention to use ten acres, the City could have condemned a smaller site.
Any effort of the condemnor to minimize its damage by such proof of intention to use less than the full rights being sought has consistently been denied by our Texas courts. In Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App., 1941, writ dism’d), the State condemned a narrow strip off of the front of the landowner’s homestead. The strip contained ornamental trees and shrubs, a honeysuckle hedge, rose bushes, a water pipeline and a drainage ditch. Over objection, a State’s witness was permitted to testify that the present policy of the State Highway Commission was not to remove shrubs, etc., from highway rights-of-way unless they were hazardous to traffic. In holding the Trial Court erred in admitting such testimony, the Court said:
“The probability that the appropriator will not exercise, or the fact that there is no present intention of exercising, to the full extent the rights acquired, should not be considered in reduction of the damages, where there is nothing to prevent a full exercise of such rights, since the presumption is that the appropriator will exercise his rights and use and enjoy the property taken to the full extent.” 20 C.J. 768, § 227. [Emphasis added.]
The Court said in Creighton v. State, 366 S.W.2d 840, at page 843 (Tex.Civ.App.1963, writ ref’d, n. r. e.):
“The presumption is that the State will exercise its rights and use and enjoy the property taken to the full legal extent.”
The rule as set forth in the above quotations has long been followed by Texas courts. Hill v. State, 289 S.W.2d 801 (Tex.Civ.App.1956, n. w. h.); Strickland v. City of Friona, 294 S.W.2d 254 (Tex.Civ.App.1956, writ ref’d, n. r. e.); Wiseman v. State, 406 S.W.2d 253 (Tex.Civ.App.1966, writ ref’d, n. r. e.) ; City of Corpus Christi v. Polasek, supra. See White v. Natural Gas Pipeline Company of America, 444 S.W.2d 298 (Tex.1969); Texas Power & Light Company v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958). See also Nichols on *252Eminent Domain, Vol. 4A, § 14.24; 7 A. L.R.2d 364 at page 366, § 2, to the effect that it is not what the condemnor actually does or plans to do that determines the quantum of damage but rather what it acquires the right to do. For additional cases see Rayburn, Texas Law of Condemnation (1960) § 136; 27 Am.Jur., Eminent Domain § 272, p. 61; Vol. 29A C.J.S. Eminent Domain, § 155 p. 658; Vol. 5 Nichols, the Law of Eminent Domain, § 16.11 (1969).
The reasons for the rule are clearly set out in Nichols, supra:
“In other words, payment must be made for the rights which have been acquired, not the more limited use to which the condemnor may intend to devote the property taken. The question is not— How does the condemnor intend to use the property? — but, rather, — What right to use has been acquired? Various reasons have been given by the courts to support the above conclusion:
“(1) Damages are payable in money and the condemnor cannot substitute promises to mitigate damages in lieu thereof;
“(2) Damages may not be paid piecemeal, and are payable once and for all;
“(3) The constitution requires payment of full and just compensation.
“The foregoing is to be distinguished, of course, from those cases where (a) the taking is limited, (b) certain rights are reserved to the condemnee, or (c) the agreement as to future use is otherwise in binding form.”
Based upon the authorities above discussed, I would hold that the special instruction, the order sustaining the Motion in Limine, and the rulings upon the admissibility of evidence consistent therewith were proper.
By its points 17 and 18 the City contends that there is no evidence to support the findings of the jury in answer to Special Issues No. 4 and No. 6. The jury found (4) that the market value of the remainder was decreased, and (6) that the market value of the remainder after taking was $1,640,592.80, a decrease of $143,000.00. The evidence on these issues was in sharp conflict. V. P. Ringer and Sid Holdridge, the city’s witnesses, testified that the remainder was enhanced by the taking. Among others, John Alexander, Charles Osenbaugh and Marvin McGlathery gave testimony that would support the jury’s answers to these issues.
A brief summary of the evidence in support of the jury’s answers to Special Issues No. 4 and No. 6 is set forth below:
1. The City engineering expert testified that in March, 1966, that a 10-acre sewer plant site was chosen in order to serve sewage needs from 6000 acres of the 9000 acres of the City of Pearland. The other 3000 acres would be served by the Long-wood plant. He further testified that the unit actually constructed is just the first unit of the sewer plant and covers about i/sth of an acre. Pictures of the present plant were introduced into evidence and its operations explained.
2. If a developer had chosen the site for the sewage plant, he would have located it in a boundary line corner in order to hide the site and facilities from as many prospective homes as possible. This is exactly what the City did not do. The same argument is made with reference to the 2.-04 acre and 40 foot wide roadway easement. At the time of trial the City had constructed on the easement a narrow shell-topped road approximately 10 feet wide with open ditches on both sides. It is an eyesore constructed in a manner inconsistent with the development of a first class subdivision. This is the type road that would appear in a substandard subdivision. The City has also constructed a barbed wire fence along the west side of the easement together with transmission poles, cross arms and lines along the same *253side of the easement to bring electricity into the sewage plant. This construction by the City creates an eyesore, splitting the Alexander tract and creating a hindrance to orderly future development of the Alexander remainder. It is undisputed and testified to by the City’s witness that “the vat usually overflowed every time it rained.” Thus, fecal matter and other raw sewage pollutes the adjoining area and Clear Creek.
3. The landowners offered evidence, including pictures, to demonstrate that from time to time raw sewage overflowed from the tanks down on to the ground and ultimately to Clear Creek. That same was ugly and created unpleasant odors and further that same was unsanitary. Strong obnoxious odors emanate from this first unit extending in all directions for distances up to 1500 feet.
4. Loud noises coming from large blowers which pump air into the open vats can be heard in every direction as far as 1200 feet from the plant.
5. The ugly plant, substandard road, barbed wire fence, ditches and poles and crossbars are visible from nearly every point on the Alexander tract and from across the road on the west.
Taking those, and other facts into consideration, the expert witnesses concluded that the value of the acreage within 1000 to 1500 feet (98 to 125 acres) was decreased an average of 50% to 75%.
In passing upon the lav/ question of “no evidence,” appellate courts must consider only the evidence which supports the jury verdict and consider only the facts and circumstances which tend to sustain the verdict. Moreover, we must reject all evidence and inferences which are contrary to the finding of the jury. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696; Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359 (1957); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 364 (1960).
The evidence shows that the sewage plant located on this 10-acre tract will serve a much larger area than the remaining lands of these landowners. While it is true that the Alexander’s remainder might not have enjoyed the availability of sewage disposal but for the 10-acre sewage plant, neither would the other acreage which will be served by this plant. All of the surrounding acreage will also benefit by the presence of this 10-acre sewage plant. Alexander lands received special damages in that the sewage plant on the 10-acre tract produces offensive odors and noises and presents an unattractive appearance.
The Trial Court gave the proper and customary instruction in connection with Special Issue No. 6:
“Excluding increase in value, if any, and decrease in value, if any, by reason of benefits or injuries received by 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 out of which Parcels have been condemned by the City of Pearland, and taking into consideration the uses to which the condemned parcels are to be subjected, what do you find from a preponderance of the evidence was the market value of the defendants’ 810.724 acre remainder tract of land immediately after the acquisition of said parcels by the City of Pearland on March 18, 1966 ? ”
This Court has approved the above instruction. State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936). See Article 3265, Vernon’s Ann.Texas Civil Statutes. Pictures of the sewage plant on the 10-acre site were admitted into evidence. Costs of the sewer lines and of the plant were also admitted into evidence. The City’s witnesses testified that the Alexander lands were specially benefitted. The City’s attorney argued to the jury that the Alexan*254der lands were specially benefitted. The jury concluded otherwise.
Under the proper instruction set forth above a community or special benefit is a mixed question of law and fact, one to be determined by a jury. Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259 (1890); Hall v. Wilbarger County, 37 S.W.2d 1041 (Tex.Civ.App.1931, affirmed, Comm. of App., 55 S.W.2d 797); Rayburn, Texas Law of Condemnation, (1960), § 138.2 at page 423.
There is ample competent and credible evidence of probative force to support the jury’s findings in answer to Special Issues No. 4 and No. 6. I agree with the holdings of the Trial Court and Court of Civil Appeals on these points.
The majority opinion says: “What is questioned by the City is the manner in which the award of severance damages of $143,000 to the remainder. . . . ” During the trial the City’s experts contended that there was no damage to the remainder —that the remainder enjoyed special benefits. The jury, the Trial Court, and Court of Civil Appeals found to the contrary. The majority opinion does not suggest that there is no evidence to support the jury verdict.
The majority states that the Trial Court restricted the City from showing the uses of the tract which were reasonably foreseeable at the time of taking. William C. Walsh, Registered Professional Engineer and witness for the City, testified to the following matters:
1.That Pearland had a population of 5,-000 in 1966 and had approximately 1,200 to 1,400 residences.
2. That at the time of trial Pearland had about 6,500 population and an additional 300-400 residences.
3. That his firm designed and supervised construction of the sewage plant.
4. That this plant was a contact stabilization type disposal plant.
5. That this plant has the capacity of 1,200,000 gallons per day.
6. That the plant has been regularly inspected by the Water Quality Board.
7. Walsh then gave a complete description of the plant processes step by step.
8. That there is no odor being emitted from the plant.
9. That there is no odor along the downstream creekbed.
10. That the sewer plant cost $290,638.-05.
11. That the trunk line cost $164,808.00.
12. That the Alexander tract would derive a great advantage from the sewer plant and trunk line.
13. That the best place to put a sewer plant on the Alexander tract for subdivision purposes would be the middle.
14. The actual plant on the condemned tract is within 75 feet of the property line adjacent the Alexander remainder.
15. Walsh testified that this is just the first unit of the sewer plant.
16. That there are subdivisions built around sewer plants in Houston with houses ranging up to $50,000.
17. That the Alexanders would have to construct a central sewage plant and the $164,000 trunk line to build the subdivision as septic tanks would have been impractical absent the city plant.
18. That the subdivision would need a larger plant than the one the city has built.
*25519. That the 2,400 home subdivision on the Alexander remainder would require a larger plant than the existing one on the condemned tract.
20. That 75 feet from the blowers, they could not be heard.
21. That the creek below the plant was crystal clear.
22. That the State Health Department has monthly inspections of the effluent.
23. That the 800 acres would require a trunk line like the city had put in for subdivision purposes.
24. That the cost of such a trunk line would be $70,000 to $90,000.
25. That the landowner’s appraisal witness was erroneous when he assumed he would tie on to existing lines because that would have been impossible.
26. That in order to build the subdivision without the sewage plant on the condemned site, the trunk and lateral lines would have been very expensive and a lift station would be required. The City did not have the capacity to dispose of the sewage without additional facilities.
27. That the old plant was some distance from Clear Creek and the effluent was discharged into a ditch which ran into Clear Creek.
28. That Walsh was familiar with the new Pearland plant number three downstream from the plant on the Alexander tract.
29. That plant number three is on 2.96 acres.
30. That in other subdivisions in the area, houses were built after and close by sewer plants.
31. That the sewage plant pollutes the Clear Creek.
32. That this sewage plant will serve 6,000 of the 9,000 acres in Pearland.
33. That 6,000 acres would be served is the reason 10 acres were taken.
The majority opinion wholly fails to point out any specific ruling on the admission or exclusion of evidence which would constitute reversible error. All of the Trial Court’s rulings were consistent with the order sustaining the landowners’ Motion in Limine. That order was not erroneous, and the majority opinion does not so hold. That order was entirely proper.
The City sought to condemn the ten acre tract as a site for a sewage disposal plant with “supply reservoirs or stand pipe for water works or sewers; . . . vats, Alteration pipes and other pipes,” etc. Art. 3265, Vernon’s Annotated Texas Civil Statutes, directs as the rule of damages in such cases that evidence shall be heard “as to the value of the property sought to be condemned and as to the damages . . . that will result to the remainder of such property belonging to such owner, if any, by reason of the condemnation of the property, and its employment for the purpose for which it is to be condemned. ...” The judgment of the Trial Court awarded the City “[t]he fee simple title in and to the surface estate of the ten (10) acre parcel of land . . . for use as a site for a sewerage disposal plant. ...” The City thus sought the full ten acres as a site for a sewage disposal plant and the judgment of the Court awarded title to the City to the full ten acres as a site for a sewage disposal plant. The order in limine did no more than to prohibit the City from introducing evidence that “less than the full ten acres” would “be used for such a sewer plant.”
Even if the foregoing order was erroneous, it did not constitute reversible error. As pointed out in our per curiam opinion in Bridges v. City of Richardson, 163 Tex. 292, 354 S.W.2d 366 (1962), the purpose of orders of this type is “to prevent the asking of prejudicial questions and the making *256of prejudicial statements in the presence of the jury.” Such orders do not eliminate the necessity for showing the availability of evidence, nor do they preclude inclusion thereof in a bill of exceptions at the proper time in the course of trial. “Before a party can correctly claim error, he must offer his evidence, and secure an adverse ruling from the court.” City of Corpus Christi v. Nemec, 404 S.W.2d 834 (Tex.Civ.App., Corpus Christi, 1966, no writ). Cf. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.1963). The only relevant evidence offered and excluded by the Trial Court was opinion testimony of City’s expert witness that, while the ten acre site was capable of accommodating a plant of twelve million gallons of sewage per day, it was not “reasonably foreseeable that there would ever he constructed on the ten acre site plants having a capacity greater than six million gallons per day”; and opinion testimony of the landowner’s expert witness, given on cross examination, that the City was in error “when they said they needed ten acres”; that they were “not going to need it for years and years and years.” The net effect of this testimony is that it was not reasonably probable that the City would ever use all of the ten acres it was condemning for the purpose for which it was condemned. Under the provisions of Art. 3265, V.A.T.C.S., quoted above, such testimony was not admissible and was properly excluded. I suggest, therefore, that City was not precluded by the Trial Court’s order in limine from offering any admissible evidence of reasonably probable uses of the condemned property in the reasonably foreseeable future.
Admission into evidence of photographs of the Lockwood and La Porte sewage plants has not been held by the Court to be erroneous, and need not be noticed further. Notice should be taken on this point, however, that the majority do not look at the “whole record” but only at evidence unfavorable to the City. Neither is it suggested by the Court that the footnoted statements by counsel of their respective theories of the issue in the case were erroneous and prejudicial. Indeed, such statements were made out of the presence of the jury.
Finally, it will be noted that the judgment of reversal and remand by the majority opinion is based solely on its holding that the Trial Court committed reversible error by giving the special instruction which constituted a comment on the evidence. I submit that the majority opinion wholly fails to demonstrate that this error, if any, was harmful under a proper interpretation of Rule 503, Texas Rules of Civil Procedure.
I would affirm the judgments of the courts below.
CALVERT, C. J., and GREENHILL, J., join in this dissent.