CITY OF DALLAS, Appellant v. CLYDE HOPKINS, ET AL., Appellees

Affirmed and Opinion filed October 23, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00210-CV
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CITY OF DALLAS, Appellant
V.
CLYDE HOPKINS, ET AL., Appellees
 
.................................................................
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC86-3365-E
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O P I N I O N
Before Chief Justice Enoch and Justices Whitham and Ovard
Opinion By Justice Whitham
        In this condemnation action to acquire a pipeline easement, the appellant-condemnor, City of Dallas, appeals from a judgment on the verdict in favor of appellee-property owners, Clyde and Mary Jo Hopkins. This appeal centers upon the jury's answers to two questions. In answer to question one, the jury found that the difference in the market value of the easement land before and after taking was $34,996.00. In answer to question two, the jury found that the difference in the value of the remainder of the Hopkins' land before and after taking was $58,363.00. At oral argument, the city waived all its challenges to the jury's finding of the amount of damages for the taking of a temporary working easement in answer to question three. The city briefs its first seven points of error together. In these seven, the city challenges the legal and factual sufficiency of the evidence to support the jury's findings to answers one and two. In these seven, the city complains of trial court error in admitting into evidence certain sales relied upon by the Hopkins' expert witnesses to establish market value and trial court error in refusing to strike this expert testimony. In its eighth point of error, the city complains of the trial court's definition of "easement" in the charge. In its ninth point of error, the city contends that the jury findings as to question one and two are against the great weight and preponderance of the evidence. We find no merit in any of the city's nine points of error. Accordingly, we affirm.
        First, we will address the city's challenges to the legal and factual sufficiency of the evidence. A "legally insufficient" point is a "no evidence" point presenting a question of law. In deciding that question, we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985). If a "no evidence" point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). It is fundamental that these fact findings must be upheld if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). In reviewing "factually insufficient" points, we consider all the evidence including any evidence contrary to the judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). A finding can be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Applying these principles, we must first determine if there is evidence of probative value to support the trial court's findings. When both "no evidence" and "insufficient evidence" points of error are raised in the court of appeals, the court should rule upon the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). We turn, therefore, to consider only the evidence and the inferences tending to support the jury's findings disregarding all evidence and inferences to the contrary.
        The city filed this action in eminent domain to acquire a pipeline easement across the Hopkins' property. The Hopkins own approximately 380,370 square feet of land. The property abuts the U.S. Highway 175 right-of-way line (Hawn Freeway), but has no direct access to the freeway because there is no service road. The property is zoned Floodplain Industrial 2. The city's easement, containing 58,328 square feet, crosses the property generally parallel with, but not abutting, that portion of the property abutting the north side of the U.S. Highway 175 right-of-way line. The city also acquired a temporary working space easement 25 feet wide on the south side of the permanent easement and containing 24,376 square feet. The remainder on the south side of the easement contained either 97,272 or 128,502 square feet depending on the testimony. The remainder on the north side of the easement contained either 224,770 or 193,540 square feet.
        The Hopkins called two appraisal witnesses. The first was Don Moore and the second was A.C. Moser. These witnesses used the same sales as comparables and arrived at only slightly different conclusions of market value and damages.
        Moore concluded that the property in its fee state should be valued at $1.25 per square foot. This translates to a value of $72,910.00 for the 52,328 square feet of land prior to the imposition of the easement. FN:1 His opinion of value of the property in the easement after the imposition of the easement was $600.00. Thus, Moore's testimony indicated that the Hopkins were entitled to receive $72,310.00 for the easement rights taken. Moore further testified that the property between the easement and the Highway 175 right-of-way line (which he calculated to be 128,502 square feet of land instead of 97,272 square feet calculated by the city's surveyor) to be valued at $160,627.50 before the taking FN:2 and damaged in value 20% by the taking, or $32,125.50. Moore, as well as the rest of the experts, agreed that the remainder of the property -- the 224,770 square foot parcel north of the easement -- was not damaged at all. The Hopkins' second witness, Moser, testified that the property was worth $1.20 per square foot. He testified that the property covered by the easement had no value after the imposition of the easement. FN:3 Therefore, his evaluation of the amount due the Hopkins for the 58,328 square foot easement was $69,993.60. Moser testified that the land between the easement and the highway right-of-way line was damaged in the amount of $38,550.60.
        Thomas Morey, the city's expert witness, valued all the property prior to the taking at 30 cents per square foot. This translates to a value of $17,498.40 for the 58,328 square foot easement prior to the taking, and a value of $38,550.60 for the property between the easement and the highway right-of-way. FN:4 Morey went on to state that after the taking, the easement's value would be 3 cents per square foot for a value of $1,750, and the property between the easement and the highway right-of-way would not be damaged, keeping its full value. Thus, Morey testified that the property owners were entitled to $15,750 for the easement rights taken and nothing for damages to the property between the easement and the highway right-of-way. Thus, the range of values for all the witnesses are as follows:
        Permanent easement:
            pre-condemnation $ 72,910.00        (highest figure by Moore)
            post-condemnation $ 0.00        (lowest figure by Moser)
 
        Property between the easement and highway right-of way:
            pre-condemnation $160,627.50        (highest figure by Moore)
            post-condemnation $ 38,550.60        (lowest figure by Morey)
 
The jury answered the first question submitted (change in market value of the permanent easement) in the amount of $34,996. The jury answered the second question (change in market value of the remainder of Hopkins' land) in the amount of $58,363.
        Since the jury was free to consider all or any part of the testimony of the Hopkins' witnesses Moore and Moser and the city's witness Morey, we conclude that all such evidence constitutes evidence in support of the jury's findings to questions one and two. We reach this conclusion because the jury's answers fall within the market value ranges provided by the testimony of Moore, Moser and Morey. As a general rule, it is peculiarly within the province of the jury to weigh opinion evidence and the judgment of experts. Octane Oil Refining Co. v. Blankenship-Antilley Implement Co., 117 S.W.2d 885,886 (Tex. Civ. App.--Eastland 1938, no writ). It is within the province of the jury to decide which expert witness should be credited. American Airlines, Inc. v. United States, 418 F.2d 180, 194 (5th Cir. 1969). Indeed, from the range of damages to which the parties' expert witnesses testified, the jury may determine the amount of damages. See Wright Titus, Inc. v. Swafford, 133 S.W.2d 287, 295 (Tex. Civ. App.--Austin 1939, writ dism'd judgmt cor.) (jury authorized to find value of converted silverware to be $75.00 against attack that it had no support in the evidence when owner testified that silverware had no value but that his investigation showed that it would cost more than $100.00 to replace the silverware). See also Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933, 942 (Tex. App.--Dallas 1987, writ denied). In the present case, the expert witnesses afforded rather large valuation ranges for the property at issue (see above) in a case in which the complex nature of the witness' testimony, both direct and on cross-examination, afforded the jury much opportunity to accept and reject what they were hearing. "[Expert opinion] testimony is but evidentiary, and is never binding upon the trier of facts. Thus, the factfinder is not cut off from exercising considerable personal judgment about how far such opinions are to be relied upon." Main Bank & Trust v. York, 498 S.W.2d 953, 957 (Tex. Civ. App.--San Antonio 1973, writ ref'd n.r.e.). Hence, the jury could have found the damages to the Hopkins' property in any amount within the respective ranges of valuation. After considering only the above evidence and inferences therefrom, we conclude that the evidence is legally sufficient to support the jury's findings to questions one and two. We overrule the city's fourth point of error. We also overrule the city's fourth point of error on the basis of our disposition below of the city's points of error five, six and seven. In its fifth, sixth and seventh points of error, the city contends that the trial court erred in admitting the sales used by the Hopkins' expert witnesses and in overruling the city's motion to strike the testimony of the Hopkins' expert witnesses Moore and Moser. The city argues that without these sales and this testimony the record would contain no evidence of probative value to support the jury's findings to questions one and two. Because we find no merit in the city's fifth, sixth and seventh points of error, we remain of the opinion that the evidence is legally sufficient to support the jury's findings to questions one and two.
        Thus, we turn to our assigned task of deciding whether the evidence is factually sufficient to support the jury's findings. In doing so, we must apply the instructions of Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980) as directed in Pool v. Ford Motor Co., 715 S.W.2d 629, 633-36 (Tex. 1986). We now provide the analysis of all the evidence which must be weighed and considered in deciding whether the evidence is factually sufficient to support the jury's findings. The evidence in support of the trial court's findings is summarized above in our disposition of the no evidence points and we will repeat only as necessary. Thus, we turn to the evidence contrary to the jury's findings to questions one and two.
        As stated above, Thomas Morey, the city's expert witness, valued all of the property in question at 30 cents per square foot, translating to a value of $17,498.40 for the easement prior to the taking, and a value of $38,550.60 for the property between the easement and the highway right-of-way. Morey went on to state that after the taking, the easement's value would be 3 cents per square foot for a value of $1750, and the property between the easement and the highway right-of-way would not be damaged, keeping its full value of $38,550.60. Thus, Morey testified that the property owners were entitled to $15,750 for the easement rights taken and nothing for damages to the property between the easement and the highway right-of-way. This is the sum total of all the evidence contrary to the jury's findings.
        Considering all the evidence, we conclude that the evidence is factually sufficient to support the jury's findings to questions one and two. Considering and weighing all the evidence, we are unable to state in what regard the contrary evidence greatly outweighs the evidence in support of the jury's findings. Pool, 715 S.W.2d at 635. In the present case, therefore, we cannot hold that the jury's findings are factually insufficient. Moreover, we cannot hold that the jury's findings are so against the great weight and preponderance of the evidence as to be manifestly unjust, or that the jury's findings shock the conscience of this court or that the jury's findings clearly demonstrate bias. See Pool, 715 S.W.2d at 635. Indeed, we conclude that to so hold in the present case would abuse our authority under article V, section six of the Constitution of the State of Texas and deprive the Hopkins of their right of trial by jury afforded them by article I, section fifteen of the Texas Constitution. In short, we cannot agree to "unfind" the jury's findings and substitute our judgment for that of the jury. We hold, therefore, that the evidence is factually sufficient to support the jury's findings to questions one and two. We overrule the city's points of error one, two, and three.
        In its fifth, sixth and seventh points of error, the city contends that the trial court erred in admitting the sales of the Hopkins' expert witnesses and in overruling the city's motion to strike the testimony of the Hopkins' expert witnesses Moore and Moser. First, the city argues that the sales relied upon by the witnesses are not comparable sales. To be admissible in condemnation cases, evidence of comparable sales must involve land "similar" to that of the condemned property. See, City of Beaumont v. Bryant, Byram & Swain, 535 S.W.2d 420, 421 (Tex. Civ. App.--Beaumont 1976, no writ); Trinity River Auth. v. Hutchings, 437 S.W.2d 383, 385 (Tex. Civ. App.--Beaumont 1969, no writ). The question of the degree of similarity, the size, distance and use factors in comparable sales in condemnation cases is not governed by inflexible, hard and fast general rules. Simpkins v. City of Dallas, 542 S.W.2d 701, 703 (Tex. Civ. App.--Waco 1976, no writ); State v. Hays, 361 S.W.2d 401, 403 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.). Each case must be judged by its own facts. Ford v. State, 432 S.W.2d 720, 721 (Tex. Civ. App.--Amarillo 1968, no writ). A trial court is vested with very broad discretion in determining whether sales offered in evidence are comparable to the land taken. Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ. App.--Austin 1980, writ ref'd n.r.e.); Bridges v. Trinity River Auth., 570 S.W.2d 50, 56 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.); Southwestern Bell Telephone Co. v. Ramsey, 542 S.W.2d 466, 476 (Tex. Civ. App.--Tyler 1976, writ ref'd n.r.e.); Texas Elec. Service Co. v. Graves, 488 S.W.2d 135, 139 (Tex. Civ. App.--El Paso 1972, writ ref'd n.r.e.). The trial court's ruling that a prior sale is sufficiently similar to be considered comparable cannot be reviewed except to determine whether there has been an abuse of discretion. Queen City Land Co., 601 S.W.2d at 530; Texas Elec. Service Co. v. Nix, 575 S.W.2d 304, 306 (Tex. Civ. App.--Fort Worth 1978, writ ref'd n.r.e.); Ramsey, 542 S.W.2d at 476; Bryant, Byram & Swain, 535 S.W.2d at 421; Holcombe v. City of Houston, 351 S.W.2d 69, 73 (Tex. Civ. App.--Houston 1961, no writ).
        Comparable sales are generally admissible "unless it should appear that reasonable minds cannot differ from the conclusion that the evidence of another sale lacks probative force because of dissimilarity." Bridges, 570 S.W.2d at 56; Hays v. State, 342 S.W.2d 167, 174 (Tex. Civ. App.--Dallas 1960, writ ref'd n.r.e.). The test for determining comparability in Texas was set forth in Trinity River Auth. v. Hutchings, 437 S.W.2d at 385:
        A complete review of the Texas decisions as to the question of comparability has led us to conclude these three simple rules: (1) It is sufficient [if] it can be shown as a predicate that the lands involved in prior sales are similar to those taken. (2) The trial court has great discretion in determining whether sales offered in evidence are comparable to the land being taken. (3) A trial court's decision that a prior sale is sufficiently similar to be considered comparable cannot be reviewed except to determine whether there has been an abuse of discretion.
Comparable sales larger or smaller in size than the subject property are not per se inadmissible. In City of Abilene v. Blackburn, 447 S.W.2d 474 (Tex. Civ. App.--Eastland 1969, writ ref'd n.r.e.), comparable sales involving tracts ranging in size from 20 acres up to 243 acres were held to be sufficiently similar to the 35.34 tract condemned to be admissible despite the size differentials. Also, in Queen City Land Co., 601 S.W.2d at 530, the Austin Court of Appeals held that the trial court did not abuse its discretion in admitting the value testimony of two expert witnesses regarding sales of much larger tracts, where those sales were not so dissimilar as to render them inadmissible.
        Moore and Moser used three sales as comparables. The City draws these distinctions. The first sale admitted into evidence is a sale from Beckham to Cravens on May 13, 1986, containing 27,000 square feet of land. The land is located at the northeast corner of Hawn Freeway and Southeast Drive and is zoned Industrial-2. The Beckham sale is a platted lot - the Hopkins' property is acreage. The Hopkins' property is approximately 13 times larger than the Beckham sale. The Beckham sale is not in the floodplain. The Hopkins' property requires 10 to 16 feet of fill to bring it out of the floodplain. The Beckham sale is located on Highway 175 service road - the Hopkins' property has no service road. The State Highway Department has no current or future plan to build a service road in front of the Hopkins' property. The witnesses took the Beckham sale, which sold for $3.24 per square foot and arrived at a value for the Hopkins' property of $1.25 per square foot according to Moore, and $1.20 per square foot according to Moser.
        The second sale admitted into evidence is from Investex to McDonald Corporation. The land sold on June 16, 1986, containing 41,774 square feet of land. It is located near the intersection of Hawn Freeway and Beltline Road. The Investex sale is zoned for commercial uses. The Hopkins' property is 8 to 9 times larger than the Hopkins sale. The Investex sale is located at a major intersection and on a service road. The Hopkins' property is not at a freeway intersection and has no service road. The Investex sale is zoned for commercial uses and is not in the floodplain. The Hopkins' property will require 10 to 16 feet of fill to be brought out of the floodplain. The Investex sale sold for $7.40 per square foot and the witnesses valued the Hopkins' property at $1.20 to $1.25 per square foot.
        The third sale was from Shackley to Pounds and is located on Highway 175 near Lake June Road. The date of sale is April 19, 1984. The Shackley property contained 30,000 square feet and is zoned Industrial-2. The Hopkins Property is 12 times larger than the Shackley sale which is located near a major intersection. The City asserts that the only common characteristics between the Hopkins' property and the admitted sales is a reasonable proximately to Highway 175 (Hawn Freeway).
        The Hopkins respond that the first sale (Beckham) of 27,000 square feet was used to compare the 58,345 square feet taken in the easement, and, therefore, no comparison was made with the Hopkins' total acreage. Thus, the Hopkins maintain that the size differentials are not so dissimilar as to render the Beckham sale inadmissible as a matter of law. The Hopkins further argue that "floodplain" is a non-issue. We agree. Although the three comparables were not of land situated in the floodplain, the record contains ample evidence that the Hopkins' property can be taken out of the floodplain. We quote the February 26, 1986 letter from Mike Askew, a civil engineer employed by the City of Dallas Public Works Department and in charge of the flood plain ordinances of the City of Dallas:
        Re:        Lower White Rock Creek Flood Plain Management Study. Dear Mr. Hopkins: The subject floodplain study prepared by Stormwater Management staff has been submitted to the Director of Public Works for his review. The concept has been approved with minor changes and it appears that your property will be designated as an area which may be filled.
Askew also testified that the Hopkins' application was complete and on file and did not require any engineering work since "It was part of our study when we had an available study we don't require that an applicant hire an outside engineer to repeat that study."
Moreover, evidence was adduced through the testimony of Moore and from the city's expert witness Askew that there is a reasonable probability that the floodplain zoning restriction will be modified or lifted once a fill permit is granted and the property is raised out of the floodplain. Thus, it is undisputed that the Hopkins' property can be raised out of the floodplain and that the Hopkins' have initiated steps to do so. In this connection, we conclude that consideration may be given to the use for which the condemned property is reasonably suitable and adaptable, though prohibited by a zoning ordinance or other legal restriction, for purposes of arriving at market value "if it appears reasonably probable to the trial judge that the wants and needs of the particular community may result, within a reasonable time, in the lifting of restrictions . . . ." City of Austin v. Cannizzo, 267 S.W.2d 808, 815 (Tex. 1954). In so holding, the Supreme Court in Cannizzo quoted with approval from 1 Nichols on Eminent Domain, § 219:
        When however, a particular use of property is prohibited or restricted by law, but there is a reasonable probability that the prohibition or restriction will be modified or removed in the near future, the effect of such probability upon the value of the land may be taken into consideration.
We conclude that size differentials and zoning designation differentials in the present case do not render the comparable sales so dissimilar as to be inadmissible as a matter of law.
        Lastly, we note the city's contention that the comparable sales are not admissible because the Hopkins' property is not located at or near a major intersection or highway service road as were the comparable sales. Sales to be comparable to the subject property should be either in the same neighborhood or in a comparable neighborhood. Urban Renewal Agency of the City of Austin v. Georgetown Savings and Loan Ass'n, 509 S.W.2d 419, 422 (Tex. Civ. App.--Austin 1974, writ ref'd n.r.e.). Also, if urban property is involved, evidence of comparable and similar sales located anywhere within the metropolitan trade area is admissible. Ramsey, 542 S.W.2d at 476. The Hopkins' expert Moser testified that the Hopkins' property is located near U.S. Highway 175, a major artery throughout southeast Dallas and which is a highly traveled roadway through Pleasant Grove and East Texas. Moser also testified that the Hopkins' property is well suited for Industrial-2 zoning and that in his opinion, the highest and best use of the subject property is for some type of industrial use. In Blackburn, the court held that comparable sales in the "general vicinity" of the subject property were admissible although some were much smaller in size than subject. Blackburn, 447 S.W.2d at 476. Therefore, we conclude that the Hopkins made a sufficient showing that the comparable sales used by their experts in valuing the Hopkins' property are so similar to the Hopkins to warrant their admission into evidence. "Similarity," as discussed above, is the test for determining admissibility of comparable sales in condemnation cases. See Bryant, Byram & Swain, 535 S.W.2d at 421; Hutchings, 437 S.W.2d at 385.
        In closing this part of this opinion, we must note the function of cross-examination in condemnation cases and the jury's role in condemnation cases. Testimony given on direct examination of a condemnee's value witnesses regarding sales of allegedly comparable properties has been held admissible, over objection, where all of the facts contrary to the conclusions of condemnee's experts were fully developed on cross-examination. See Graves, 488 S.W.2d at 138-39. In the present case, the city thoroughly developed and exposed any weaknesses and inconsistencies in the testimony of the Hopkins' expert witnesses Moore and Moser on cross-examination. It is a well-established rule in Texas that objections to evidence of allegedly comparable sales based on alleged differences in size, location and use go to the weight rather than to the admissibility of the evidence. Graves, 488 S.W.2d at 139; City of Houston v. Wisnoski, 460 S.W.2d 488, 493 (Tex. Civ. App.--Houston [14th District] 1970, writ ref'd n.r.e.); Bd. of Regents of the University of Texas System v. Puett, 519 S.W.2d 667, 673 (Tex. Civ. App.--Austin 1975, writ ref'd n.r.e.); State v. Hays, 361 S.W.2d 401, 403 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.). It is the exclusive province of the jury in condemnation cases to assign the weight to be given expert testimony. Trinity River Auth. v. McMurrey, 439 S.W.2d 887, 889 (Tex. Civ. App.--Beaumont 1969, no writ).
        For the reasons and upon the authorities above cited, we conclude that the trial court did not err in admitting the three challenged comparable sales used by the Hopkins' expert witnesses and that the trial court did not err in not striking the testimony of the Hopkins' expert witnesses Moore and Moser. We overrule the city's fifth, sixth and seventh points of error.
        In its eighth point of error, the city contends that the trial court erred in submitting to the jury an incorrect definition of easement when a definition in correct form was requested in writing prior to submission of the charge to the jury. The trial court instructed the jury as follows:
        "A permanent easement" means the 58,328 square feet of tract condemned by the City of Dallas with the right to use the land for the purpose of appropriating property necessary for construction, maintenance and operation of a sanitary sewer main or mains and to acquire an easement under, over, and across said property for the purpose of construction, maintenance and operation of a sanitary sewer main or mains, and more particularly, construction, maintenance and operation of a sanitary sewer main or mains in City Block 7986 in the City of Dallas.
 
        It is specifically provided that, at all times during the construction of the pipeline for which this easement is being acquired, access will be allowed from the property located on one side of the easement to the property located on the other side of the easement. Such access will be permitted through gates located at each end of the easement and will be permitted through one end at a time so as not to interfere with construction.
 
        It is further specifically provided that the temporary construction fencing for the easement will not disturb the mobile home located on subject property and that said mobile home will not be moved by Petitioner during construction. This condition is applicable so long as the mobile home remains in its location as shown on the construction plans for this project. This provision is not to be construed as authorizing said mobile home to remain if it is in violation of any law or ordinance of the City of Dallas.
Prior to the submission of the charge to the jury, the city requested the following definition:
        By the term "easement" as used in this charge is meant, the right to use the land for the specified purpose set out in the City of Dallas Statement in Condemnation, that is, for the construction, operation and maintenance of a sanitary sewer main, and for no other purpose; so that the underlying title to the lands covered by the easement, as well as the right to use, occupy and otherwise enjoy the land and property remains in the original landowner, Clyde and Mary Jo Hopkins; provided however, that such use, occupancy, and enjoyment is not inconsistent with or does not interfere with the designated and specified uses of such land for the purposes for which the easement is being acquired by the City of Dallas.
The trial court refused to give this definition.
        The city, however, in its argument under its eighth point of error does not address the merits of its submitted definition of easement or the defects in the trial court's definition of easement. Instead, the city complains of another part of the court's charge. The city's entire argument focuses upon an instruction given the jury. That instruction reads: "You are instructed that any rights reserved to the landowners in a permanent easement-taking must be set out in the statement in condemnation." Hence, we have a point of error complaining of one part of the court's charge and an argument made as to yet another part. To illustrate we quote from the text of the city's argument:
        Instead of giving that instruction which had been specifically approved as being the minimum to which the jury was entitled, the trial court gave exactly the opposite instruction. This jury was told by the trial court that any right not specifically reserved to the property owner was taken away. In fact, the opposite is true. Any right not specifically necessary for the easement purpose is retained by the property owner.
Thus, the city speaks to the instruction, not the definition. Nowhere in its brief does the city tell us that it objected to the instruction. We can only speculate as to why the city seeks to have its complaint as to an instruction ride through this court on the back of a challenged definition. Nevertheless, we have a point of error assigning trial court error in failing to give a requested definition of easement. We have no brief of that point of error. A point of error that is not briefed fails to meet the minimum requirements of rule 74(f), Texas Rules of Appellate Procedure, and the appellate court considers such a point to be waived. Schero v. Astro Bar, Inc., 596 S.W.2d 613, 614 (Tex. Civ. App.--Corpus Christi 1980, no writ). We treat the city's eighth point of error as waived. We overrule the city's eighth point of error.
        In a separately briefed ninth point of error, the city contends that the jury's findings to questions one and two are against the great weight and preponderance of the evidence. We read the city's brief to argue that its witness "Morey's valuation . . . is the only realistic, well-supported opinion that was given in this trial," and, "[t]hus, the jury's valuation . . . in value and in damages was against the overwhelming weight of both the engineering and appraisal testimony." For the reasons and upon the authorities cited in our disposition of the city's first seven points of error, we overrule the city's ninth point of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
 
890210.U05
 
FN:1 This $72,910.00 appears in the value-range summary below as the highest pre-condemnation figure for the easement.
FN:2 This $160,627.50 appears in the value-range summary below as the highest pre-condemnation figure of the property between the easement and the highway right-of-way.
FN:3 This no value figure ($0.00) appears in the value-range summary below as the lowest post-condemnation figure for the easement.
FN:4 This $38,550.60 appears in the value-range summary below as the lowest post-condemnation figure for the property between the easement and the highway right-of-way.
File Date[10-20-89]
File Name[890210]