Procedural and Evidentiary Issues in a Condemnation Case Robert B. Neblett, Esq.
CLE INTERNATIONAL ■ PAGE I-1 ■ EMINENT DOMAIN
“Procedural and Evidentiary Issues in Condemnation Cases:
What Gets in and What Doesn’t?”
presented by
Robert
B. Neblett, Esq.
Jackson Walker
Austin
I. Introduction
Traditional eminent domain trial work is unique. Liability, in the true sense of the word, is not at issue,
and very often there is only one simple question for the jury to answer – what amount of money will adequately
and fairly compensate the property owner for the rights being acquired by the condemnor? The simplicity of the
question often leads practitioners to believe that eminent domain trials will be similarly simple. In reality,
practitioners on both sides of the bar are regularly confronted with thorny, and in some cases unsettled, procedural
and evidentiary issues that must be adequately addressed. This paper examines four issues that have been
repeatedly raised in eminent domain proceedings we have been involved with over the past year. First, to what
extent are landowners testifying under the Property Owner Rule now subject to expert disclosure requirements,
and how much market evidence must a landowner now offer in order to support his opinions regarding the fair
market value of his property? Second, to what extent can a condemnee introduce evidence regarding the extent to
which the condemnor will exercise its easement rights on the condemnee’s property, and to what extent can the
condemnor introduce evidence regarding the likelihood that it will use such rights? Third, how, if at all, can a
condemnee introduce fear of electric transmission structure failure and/or electromagnetic fields as an element of
just compensation? Finally, what strictures govern the admissibility of paired sales as a method of proving
remainder damages?
II. Landowner Testimony: Evidentiary and Procedural Hurdles After Justiss
For over forty years, Texas courts have recognized landowners’ ability to testify to the fair market value
of their property, even if they could not qualify to testify about the value of similar property belonging to
Procedural and Evidentiary Issues in a Condemnation Case Robert B. Neblett, Esq.
CLE INTERNATIONAL ■ PAGE I-2 ■ EMINENT DOMAIN
someone else.
1
This “Property Owner Rule” is premised on the idea that property owners are generally familiar
with the value of their property. While the existence of the Property Owner Rule has remained uncontroversial,
the amount of evidence required to substantiate landowner valuation testimony has been the subject of much
litigation. In 1984, the Texas Supreme Court held that very little was required to substantiate landowner valuation
testimony – it was enough to testify to a general familiarity with a property’s fair market value without offering
any specific supporting evidence.
2
That standard changed on December 14, 2012. In Natural Gas Pipeline Company of America v. Justiss,
the Supreme Court re-defined the bounds of the Property Owner Rule, equating landowner testimony to expert
testimony and mandating that such testimony be supported by factual market evidence.
3
While the Court clarified
many aspects of the Property Owner Rule, it also raised several questions. For instance, if landowner testimony is
the functional equivalent of expert testimony, are landowners now subject to the same disclosure requirements as
expert witnesses? How much market evidence must a landowner offer to support his/her opinions of fair market
value? What types of evidence? Is landowner testimony subject to the same substantive requirements as an
appraisal expert?
A. The Property Owner Rule After Justiss
The Justiss case involved allegations by several homeowners that noise and odor emanating from a gas
company’s compressor station caused a permanent nuisance.
4
The homeowners testified that the nuisance
decreased their property values—and offered testimony reflecting the monetary amount of depreciation they
believed had occurred—but none explained the factual basis for their conclusions.
5
At trial, the jury found that
the noise and odor created a permanent nuisance and awarded nine of the twelve homeowners $1,242,500 based
1
See, e.g., State v. Berger, 430 S.W.2d 557, 559 (T ex. Civ. App.—Waco 1968, writ ref'd n.r.e.).
2
See Porras v. Craig, 675 S.W.2d 503, 505 (Tex. 1 984).
3
See Natural Gas Pipeline Co. of America v. Justiss, 39 7 S.W.3d 150 (Tex. 2012).
4
Id.at 152.
5
Id.
