                                  NO. 12-13-00307-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

ENBRIDGE G & P (EAST TEXAS) L.P.,               §     APPEAL FROM THE 273RD
APPELLANT

V.

BEN SAMFORD AND WIFE, BETTE                     §     JUDICIAL DISTRICT COURT
ANN SAMFORD, CECIL JACKSON
AND WIFE, MICHELLE JACKSON
AND SAMMY MONK,
APPELLEES                                       §     SHELBY COUNTY, TEXAS

                                          OPINION
       This is a condemnation case involving three tracts of land with separate ownership.
Enbridge G & P (East Texas) L.P. appeals an award of damages in favor of the landowner
condemnees, Ben Samford and wife, Bette Ann Samford; Cecil Jackson and wife, Michele
Jackson; and Sammy Monk. In six issues, Enbridge complains of charge error and the failure of
the trial court to exclude inadmissible damage testimony. We reverse and remand.


                                         BACKGROUND
       Enbridge brought three separate actions seeking to condemn a fifty foot gas pipeline
easement and a twenty-five foot temporary easement across the three tracts owned by the
landowners. Enbridge objected to the commissioners’ awards in all three cases. The trial court
then consolidated the three actions.
       The only contested issues were the value of the parts taken and the reduction in value of
the remainders because of the taking. All three tracts were rural mixed pasture or woodland.
The landowners and Enbridge each called one appraisal witness who gave their opinion of the
value of the part taken and damages to the remainder based on comparable sales of similar
property. Both Jake Lyon for the landowners and Ronnie Harris for Enbridge testified that the
“highest and best use” of all three tracts was rural residential or agriculture.
       Jake Lyon valued the Samford and Jackson tracts at the time of the taking at $2,200.00
per acre. He estimated the value of the Monk tract at $2,000.00 per acre. In his opinion, the
value of the part taken for the permanent easement was diminished by ninety percent, and the
part taken for the temporary easement by fifty percent. He testified that the value of the
remainder of the tracts was reduced by $400.00 per acre.
       Ronnie Harris testified that he valued the Samford and Jackson tracts at $3,500.00 per
acre and the Monk tract at $3,600.00 per acre. He agreed with Lyon that the taking reduced the
value of the part taken for the permanent easement by ninety percent and the part taken for the
temporary easement by fifty percent. However, based on his comparable sales data, Harris found
no damage to the remainders of any of the subject properties.
       The landowners also called Wesley Hoyt to testify to “what a gas pipeline is worth.”
Hoyt was a lawyer and the County Attorney of San Augustine County. Enbridge moved to
exclude Hoyt’s report and testimony before trial contending that he was unqualified to give an
opinion on market values. Enbridge also maintained that the per rod methodology he employed
was unacceptable, irrelevant, and unreliable.          The trial court overruled Enbridge’s motion.
Enbridge unsuccessfully reiterated its objections at trial.
       Hoyt testified that he based his opinion on the numerous occasions he had negotiated
sales of pipeline easements “before it got into litigation,” and his conversations with hundreds of
landowners. He rejected the traditional market value approach because “that standard manner of
valuation is not true, and not accurate, because that’s not what actually happens out here in the
real world in the industry.”
       Hoyt testified that, based on his general knowledge, the going price paid in the industry
was $850.00 per rod. Hoyt indicated that $850.00 per rod included the value of the easement
taken, the temporary easement, damage to the remainder, and “everything that goes on with these
easements.” Hoyt brought no comparable sales of pipeline easements or other data to support his
opinion.
       The trial court also overruled Enbridge’s objections to the testimony of Lynwood
Smelser. Smelser testified about the cost to permanently repair damage caused to the creek
banks in the permanent easement areas of the Samford and Monk tracts caused by the pipeline



                                                   2
construction. Smelser stated that to repair the damage to prevent erosion would require that the
creek banks be rip-rapped over filter fabric and the disturbed area hydro-mulched with erosion
seed blend and fertilizer. He stated that the cost for these repairs was $380.00 per foot for 231
feet or a total of $87,700.00 on the Samford easement. He estimated that similar repairs on the
181 feet of creek bank in the Monk easement would cost $68,700.00. Smelser was also asked to
estimate the cost of bringing in enough fill dirt to construct a two foot pad for four chicken
brooder houses that Jackson said he wanted to build on his tract. In Smelser’s opinion, the
pipeline complicated getting the dirt required on the Jackson property. To build the pad, he said,
would require the purchase of 10,785 cubic yards of fill at $8.00 per cubic yard or a total of
$86,286.00. However, Smelser did not testify to before and after market values, and he cannot
be considered a valuation witness.
         The testimony of the value witnesses can best be shown and compared by the charts
below.
Samford 94.32 acres (3.023 acre permanent easement; 2.528 acre temporary easement)
                                               Value
Witness        Value per         Value part    Temporary         Remainder     Total
               acre              taken         Easement          Damages       Compensation
Lyon              $2,200.00          5,9867.00       2,781.00          38,840.00         $45,407.00
                                     90% reduction   50% reduction

Harris            $3,500.00          9,522.00        4,424.00          0                 $13,946.00
                                     90% reduction   50% reduction
Hoyt              n/a                $850/rod    x   159.02 rods       n/a               $135,677.00



Jackson 63.5359 acres (.847 acre permanent easement; .475 acre temporary easement)
                                               Value
Witness         Value per        Value part    Temporary         Remainder     Total
                acre             taken         Easement          Damages       Compensation
Lyon              $2,200.00          1,677.00        523.00            25,708.00         $27,908.00
                                     90% reduction   50% reduction

Harris            $3,500.00          2,668.00        417.00            0                 $3,085.00
                                     90% reduction   25% reduction
Hoyt              n/a                $850/rod    x   44.713 rods       n/a               $38,006.00




                                                 3
Monk 34.31 acres (.858 acre permanent easement; .558 acre temporary easement)
                                             Value
               Value per       Value part    Temporary        Remainder       Total
Witness        acre            taken         Easement         Damages         Compensation
Lyon                 $2,000.00            1,544.00             558.00                12,823.00            $14,925.00
                                          90% reduction        50% reduction         400/a

Harris               $3,600.00            2,780.00             1,004.00              0                    $3,784.00
                                          90% reduction        50% reduction
Hoyt                 n/a                  $850/rod        x    x 45.303 rods         n/a                  $38,508.00




The charge given required the jury to answer two questions:


                                               Question No. 1
                What was the market value of the pipeline easement condemned on each of the tracts
         named below?

                                                  Question No. 2
                  What was the damage, if any, to the remainder of the tract named below as a result of the
         taking of the pipeline easement?


         Enbridge objected to Question No. 1 and urged the court to ask the jury to determine “the
difference in fair market value of the permanent easement immediately before the taking and
immediately after the taking.” The court overruled Enbridge’s objection and denied its requested
submission.
         The jury’s verdict is reproduced below showing the jury’s notations thereon.


                                               Question No. 1
                What was the market value of the pipeline easement condemned on each of the tracts
         named below?

         Answer in dollars and cents for each tract named below.
         A. The Samford tract

             Answer:       $135,677.00       ($850 per rod-including damages)

         B. The Jackson tract

             Answer:       $26.827.80        ($600 per rod – no damages)



                                                         4
       C. The Monk tract

            Answer:      $27,181.80        ($600 per rod – no damages)


                                                Question No. 2
                What was the damage, if any, to the remainder of the tract named below as a result of the
       taking of the pipeline easement?

       Answer in dollars and cents, if any, for each tract named below.
       A. The Samford tract

            Answer:      $23,580.00        $200 per acre

       B. The Jackson tract

            Answer:      $12,707.18        $200 per acre

       C.   The Monk tract

            Answer:      $6,862.00         $200 per acre


       From the notations on the jury charge, it is apparent that the jury followed Wesley Hoyt’s
testimony in determining the value of the part taken, the easement area. Hoyt’s $850.00 per rod
estimate comprehended all compensation due the landowners by reason of the taking including
the value of the part taken and damage to the remainder. Nevertheless, the jury also found
$200.00 per acre damage to the remainders.


                              WESLEY HOYT’S REPORT AND TESTIMONY
       In its fourth issue, Enbridge contends that the trial court reversibly erred in admitting the
report and testimony of Wesley Hoyt, a value witness for Appellees. In his report and testimony,
Hoyt made no effort to separately assess the diminution of the market value of the part taken, the
easement strip, and the reduction in fair market value of the remainder of the entire tract because
of the taking. Instead, Enbridge argues, Hoyt specifically rejected diminution in the fair market
value as the appropriate measure of compensation for the taking.                         Hoyt estimated the
landowners’ total damages because of the taking at the average linear amount per rod that,
according to his experience, was the “real world” going rate for pipeline easements. Enbridge
asserts that in ignoring diminution in fair market value of the property affected, the appropriate
measure of damages, Hoyt avoided all three of the long accepted methods of estimating those




                                                       5
damages.    Therefore, Enbridge insists, Hoyt’s report and testimony were based upon an
unaccepted and improper methodology and should have been excluded by the trial court.
Standard of Review
       The trial court’s decision to admit or exclude expert testimony is reviewed for abuse of
discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998).
We reverse a judgment for the erroneous admission of an expert’s testimony only if we conclude
the error probably caused rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1);
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A trial court abuses its
discretion if it acts without reference to any guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
       To be admissible, expert testimony must be relevant to the issues in the case and must be
based upon a reliable foundation. TEX. R. EVID. 702; Gammill, 972 S.W.2d at 720. “Relevant
evidence” means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. TEX. R. EVID. 401. Expert testimony that has no relationship to any of the
issues in the case is irrelevant because it does not satisfy the Rule 702 requirement that the
testimony be of assistance to the jury in understanding the evidence or determining a fact in
issue. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 234 (Tex. 2010); Exxon Pipeline Co.
v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). The trial court has the threshold responsibility under
Rule 702 “of ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Gammill, 972 S.W.2d at 728. The relevance and reliability
requirements of Rule 702 apply to all expert evidence offered under the rule, although the criteria
for assessing relevance and reliability must vary depending on the nature of the evidence. Id.,
972 S.W.2d at 727.
       Rule 702’s reliability requirement focuses on the principles, research, and methodology
underlying an expert’s conclusions. Zwahr, 88 S.W.3d at 629. When the expert’s underlying
methodology is challenged, the court looks beyond what the expert said to evaluate the reliability
of his opinion. Coastal Transp., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233
(Tex. 2004). Expert testimony is unreliable if it is no more than subjective belief or unsupported
speculation. Zwahr, 88 S.W.3d at 629. Expert testimony must have a reliable basis in the
knowledge, experience, methods and procedures recognized within the discipline involved.



                                                6
Gammill, 972 S.W.2d at 725-26. If there is too great an analytical gap between the data relied
upon and the opinion offered, the expert’s testimony is unreliable. Zwahr, 88 S.W.3d at 629.
An expert’s testimony is unreliable even when the underlying data is sound if the expert’s
methodology is flawed. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001).
Applicable Law
       Compensation for land taken by eminent domain is measured by the market value of the
land at the time of the taking. Zwahr, 88 S.W.3d at 627; Heddin v. Delhi Gas Pipeline, 522
S.W.2d 886, 888 (Tex. 1975); see also TEX. CONST. art. I, § 17 (guaranteeing “adequate
compensation” to landowners whose property is condemned). “Market value” is defined as the
price that the property would bring when it is offered for sale by one who desires but is not
obligated to sell and is bought by one who is under no necessity of buying. City of Harlingen v.
Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001).            The three traditional approaches to the
determination of market value are the comparable sales method, the cost method, and the income
method. Id. The fact finder is entitled to consider every factor that would affect the price for
which a willing buyer and seller would exchange for the property. City of Fort Worth v. Corbin,
504 S.W.2d 828, 830 (Tex. 1974). However, the fact of condemnation must be excluded. Id.
“[F]air market value must, by definition, be computed as if there were no proceedings [in
condemnation] to eliminate that market.” Id. No matter what appraisal method an expert uses,
the object of the inquiry is always to find the fair market value of the property; an appraisal
method is valid only if it produces an amount that a willing buyer would actually pay a willing
seller. Sharboneau, 48 S.W.3d at 183. Testimony of a witness who uses an unauthorized and
improper valuation method should be excluded. See State v. Meyer, 403 S.W.2d 366, 375-76
(Tex. 1966); Tex. Fruit Palace v. City of Palestine, 842 S.W.2d 319, 323 (Tex. App.—Tyler
1992, writ denied). “The objective of the judicial process . . . is to make the landowner whole
and to award him only what he could have obtained for his land in a free market.” Corbin, 504
S.W.2d at 831.
       In determining the market value of the property, the fact finder may consider the highest
and best use to which the land is adapted. Zwahr, 88 S.W. 3d at 628. “Highest and best use” is
“the reasonably probable and legal use of vacant land or an improved property, which is
physically possible, appropriately supported, financially feasible and that results in the highest
value.” City of Sugar Land v. Home and Hearth Sugarland, L.P., 215 S.W.3d 503, 511 (Tex.



                                                7
App.—Eastland 2007, pet. denied). Consideration must be given to “all of the uses to which the
property is reasonably adaptable and for which it is, or in all reasonable probability will become,
available in the foreseeable future.     Id.   Consideration cannot be given to uses that are
speculative and unavailable. See City of Austin v. Cannizzo, 267 S.W.2d 808, 814 (Tex. 1954).
The existing use of the land is its presumed highest and best use. Zwahr, 88 S.W.3d at 628.
However, the landowner can rebut this presumption by showing “a reasonable probability that
when the taking occurred, the property was adaptable and needed or would likely be needed in
the near future for another use.” Id.; see also United States v. 8.41 Acres of Land, 680 F.2d 388,
394-95 (5th Cir. 1982).
        An economic unit is that portion of the property that is sufficient standing alone to
support the highest and best use, independent of the remaining portions of the whole property.
Zwahr, 88 S.W.3d at 628. Three factors aid in determining whether the part taken is part of a
single larger tract: physical contiguity, unity of ownership, and unity of use. 8.41 Acres, 680 F.
2d at 393. “When an owner actually uses parts of what would otherwise constitute a unified tract
for different or separate purposes, . . . the parts may be held to be functionally ‘separate’ tracts
[or economic units], though they are not physically separate.” Id. “Integrated use is the key test
for unity of a tract.” Id.
        When only a part of the tract is taken, the “just compensation” to which the owner is
entitled consists of two elements: (1) the market value of the part taken, and (2) the diminution
in value of the remainder due to the taking and construction of the improvement for which it was
taken. See State v. Windham, 837 S.W.2d 73, 75-76 (Tex. 1992); State v. Carpenter, 89 S.W.2d
194, 197 (Tex. 1936). In the case of a partial taking, the part taken for the easement is to be
considered as “severed land,” but is to be valued as a proportionate part of the parent tract or
economic unit to which it belongs. Zwahr, 88 S.W.3d at 628; Windham, 837 S.W.2d at 76; City
of Tyler v. Brogan, 437 S.W.2d 609, 612-13 (Tex. App.–Tyler 1969, no writ).        However, where
the part taken is a self-sufficient economic unit, its value should be determined by considering
the part taken alone, and not as a portion of the entire tract of which it was a part. Meyer, 403
S.W.2d at 375.
        Ordinarily, a landowner has a right to claim consequential or severance damages to the
entire remainder of the parent tract provided it is contiguous to the part taken and there is unity
of use. Sw. Bell Tel. Co. v. Ramsey, 542 S.W.2d 466, 472 (Tex. Civ. App.–Tyler 1976, writ



                                                 8
ref’d n.r.e.).    But he is not compelled to do so.               Id. Where a substantial portion of the
remainder is suitable to some higher or better use, such as a commercial or industrial use, and the
other part of the remainder is not suitable for the same purpose, the landowner is permitted to
claim remainder damages to only that portion of the remainder suitable for the higher use. Id.
The new economic unit created from the parent tract thus becomes the appropriate unit from
which to determine the market value of the severed tract. See id. However, the condemnor also
has the right to offer competing evidence as to the appropriate economic unit to be considered by
the jury in deciding the market value of the part taken. Windham, 837 S.W.2d at 76.
        When, as in the instant case, an easement is taken for a pipeline, a power line, or similar
purposes, the owner is left with some beneficial use of the part taken. In such a case, the
damages for condemnation will be, as a matter of law, less than the full value of the fee.1
Thompson v. Janes, 251 S.W.2d 953, 956 (Tex. 1952); McClain v. Elm Creek Watershed
Authority, 925 S.W.2d 756, 758 (Tex. App.—Austin 1996, no writ). Therefore, the proper
measure of damages is the difference in value of the part taken (the easement strip), considered
as severed land, before the taking, and the value of the same tract considered as severed land
after the taking (now burdened by the easement). Callejo v. Brazos Elec. Power Coop., Inc.,
755 S.W.2d 73, 76 (Tex. 1988); Thompson, 251 S.W.2d at 955-56; McClain, 925 S.W.2d at
759. The post-taking value of the part taken for the easement naturally will vary according to the
purpose of the easement.
        When a partial taking occurs, as is the case with an easement, the landowner is entitled to
any diminution in the fair market value of the remainder of the tract lying outside the part taken.2
Zwahr, 88 S.W.3d at 627. The parties “have the right to introduce evidence of everything that
would tend to affect the value of the land, in the estimation of a proposed purchaser, or that
would tend to make it more or less valuable to the present owner. . . .” Carpenter, 89 S.W.2d at
199; Home and Hearth, 215 S.W.3d at 514-15. “But this evidence is introduced, not as
constituting a measure of damages, but as elements to enable the jury to arrive at the correct
measure, which . . . is the lessened value of the tract, if any, caused by these different

          1
            A distinction must be drawn, however, between such easements, and easements that deprive the
landowner of any beneficial use of the land. Thompson v. Janes, 251 S.W.2d 953, 956 (Tex. 1952). In the latter
class of easements, the owner may recover as damages the full value of the land. Id.
        2
            Since the landowner has the burden of proving damages, he has a right to waive severance damages to any
part or all of his remaining land. Meyer, 403 S.W.2d at 374.


                                                        9
elements. . . .” Carpenter, 89 S.W.2d at 199; Home and Hearth, 215 S.W.3d at 514-15. The
Carpenter court cautioned that the measure of damages must not be confounded with the
elements of damage, which are admitted into evidence only to enable the jury to determine the
diminution in the market value of the remainder. Carpenter, 89 S.W.2d at 198.
Discussion
       The jury issues in a partial taking for a pipeline easement are the diminution in the fair
market value of the part taken considered as severed land, and the diminution, if any, in the fair
market value of the remainder because of the taking. Id. at 197. This requires the jury to
determine the value of the part taken, the easement strip, immediately before the taking, and, if
the landowner retains some beneficial use in the part taken, its value immediately after the
taking. Id. When remainder damages are claimed, the jury must also arrive at the fair market
value of the remainder before and after the taking. Id. The difference in the before and after
values of the part taken and the remainder is the diminution in the fair market value of the
property (the before and after rule). Zwahr, 88 S.W.3d 627. The goal is always to find the fair
market value of the condemned property. Sharboneau, 48 S.W.3d at 183. An appraisal method
is not valid unless it is produces before taking and after taking estimates based fair market value,
what a willing buyer would actually pay to a willing seller. Id.
       Hoyt’s unequivocal rejection of fair market value of the land taken or damaged as the
goal in arriving at just compensation for the landowner is best demonstrated by his testimony
during cross examination.


                Q. Now, you said, I think just a moment ago, that you don’t believe it would be fair to
       determine damages for this case based upon the standard market value analysis done by real estate
       appraisers?

                A. That’s not - - that standard manner of valuation is not true, and not accurate because
       that’s not what actually happens out here in the real world in the industry.


Lyon, the other value witness for the landowners, estimated the diminution in market value of
the part taken and the remainder using comparable sales, one of the three accepted appraisal
methods. Hoyt was asked if he disagreed with Lyon’s fair market value approach.




                                                      10
                 Q. Now, but you, it’s your opinion today, that that type of testimony is just - - I think you
       just said it’s wrong; is that what you said?

                A. Well, it is wrong.

                Q. Okay. So - -

                A. It’s not accurate. It’s certainly not truthful in the real world context of getting an
       actual value.


Later he testified that “the methodology employed by appraisers may be truthful under their
rules, but the applicability of those rules to this type of measure as to value [is] inappropriate, in
my opinion.”
       In regard to traditional approaches to the determination of market value, he opined,
“From what I’ve heard of appraisers in the past that make these comparisons from apples to
oranges [comparable sales], the answer is no, I don’t think it’s appropriate.” In expressing his
opinion that a comparable sales approach was inappropriate, in fact impossible, Hoyt stated,
“[H]ow are you going to compare these three strips of land that are 100 feet wide, hundred[s] of
yards long, to a square block over here in another part of the county?” In repudiating the
preferred comparable sales approach to the valuation of the part taken for the easement, Hoyt
ignored long settled Texas law that answers the question he posed. Where the part taken is not a
self-sufficient economic unit, as is the case here, its value is determined by evaluating it as a
proportionate part of that part of the parent tract that constitutes an economic unit. Zwahr, 88
S.W.3d at 628; see also Windham, 837 S.W.2d at 76; Brogan, 437 S.W.2d at 612-13.
       Neither Hoyt’s report nor his testimony spoke to the separate issues the jury was required
to answer. He did not attempt to value the part taken as severed land nor did he separately assess
the diminution in the market value of the remainder. Hoyt, instead, combined the value of the
part taken and the consequential damages to the remainder and expressed his opinion of total
damages, including both elements of recovery, at $850.00 per linear rod for all of the tracts. The
danger that such confusion of the two elements of recovery might result in double damages (as
happened in this case) moved the Carpenter court to mandate the separate submission of (1) the
value of the part taken as severed land and (2) the consequential damages to the remainder.
Carpenter, 89 S.W.2d at 197. In the instant case, the jury obviously followed Hoyt’s testimony
and valued the parts taken per rod but also awarded damages to the remainder.




                                                        11
        It should be evident that it is impossible for a jury to separately assess the before and
after values of two areas, the part taken and the remainder, given only an amount of damages per
linear rod of pipeline. Nor can the per rod damage amount translate into information the jury can
use in deciding the two issues.
        The distortion and unreliability inherent in Hoyt’s per linear rod approach is obvious in
the instant case. Almost always a pipeline will cross tracts of varying sizes and shapes. A
pipeline may traverse a large tract for a short distance while requiring a greater distance to cross
a smaller one. Therefore, there is generally little or no relation between the length of the pipeline
easements and the size and value of the remainders created. The Jacksons’ 63.5359 acre tract
was approximately two-thirds the size of the Samfords’ 94.32 acres. But under Hoyt’s method,
the Samfords’ estimated damages were three and one-half times the damages estimated to be due
the Jacksons. In contrast, Jake Lyon, the landowners’ other value witness, used an authorized
and accepted appraisal method and applied the before and after rule in estimating damage. Lyon
determined that the Jacksons’ recovery should be sixty percent of the Samfords. His valuation
was roughly in proportion to the size of the two tracts when allowance is made for the greater
size of the Samford part taken. Under Hoyt’s approach, the estimated compensation due Monk
for his 34.31 acre was slightly more than that due the Jacksons for their 53.5359 acres. Lyon’s
accepted methodology, on the other hand, produced total damage estimates roughly in proportion
to the size of the two tracts.
        In Texas Electric Service Company v. Linebery, 327 S.W.2d 657 (Tex. Civ. App.—El
Paso 1959, writ dism’d), cited by Appellees, the landowner and his value witness testified to
sales of other easements nearby and on the subject property priced per rod. Id. at 664-65. The
court overruled the condemnor’s inappropriate objections that their testimony violated the best
evidence rule and that the easements were not comparable. See id. However, unlike Hoyt’s
testimony in the instant case, the Linebery witnesses separately estimated the value of the part
taken and the consequential damage to the remainder, and both, unlike Hoyt, expressed their
opinions in per acre terms. See id. at 664. We have found no case involving a partial taking,
other than Linebery, where per rod valuation testimony was accepted.
        We are aware that a compensation expressed per rod is common in pipeline easement
negotiations. But, in partial taking cases, such a methodology is plainly unsuitable and contrary
to long established case law. While a per rod valuation method may be a useful and common



                                                 12
shorthand in pipeline easement negotiations, in a case of partial taking, it is inapposite to the
jury’s task and therefore unacceptable.
       Hoyt claimed he premised his opinion that $850.00 per rod represented just compensation
to the landowner on over twenty years of negotiating numerous unspecified pipeline easement
acquisitions. Yet he supported his opinion with no example from any of the acquisitions. On
cross examination, Hoyt was asked for underlying facts or data supporting his opinion. He
provided none. Hoyt stated that the negotiations in which he had participated generally had been
conducted by telephone and any resulting documentation probably would show only a nominal
consideration. Even if Hoyt’s methodology were acceptable, which it is not, his bald assurance
that he knew what pipeline easements were worth, unsupported by underlying facts or data,
amounted to no more than a bare conclusion.
       Hoyt unequivocally rejected the loss in fair market value as the measure of just
compensation to the landowners. He denied that the traditional mandated approach based upon
the before and after values of the part taken and the remainder was a valid “real world” method
applicable to pipeline cases. Hoyt’s method was not based on land values that a willing buyer
would pay a willing seller. His testimony that, in his experience, pipeline companies paid
$850.00 per rod for pipeline easements did not relate to the issues the jury was charged to
resolve. His report and testimony did not address the highest and best use of the property, how
or why the easement taking damaged the remainder, nor any of the other subsidiary questions
that the jury might have considered in reaching its verdict.
       Hoyt’s report and testimony could not have assisted the jurors in addressing the issues
they were charged to resolve. But their verdict shows that his per rod approach served to confuse
them. The objective of the judicial process in condemnation “is to make the landowner whole
and to award him only what he could have obtained for his land in the free market.” Corbin, 504
S.W.2d at 831. Hoyt’s method was not designed to achieve this objective. His report and
testimony were neither relevant nor reliable and were therefore inadmissible. See TEX. R. EVID.
702. Consequently, the trial court abused its discretion in failing to exclude them. Because it is
apparent from the jury’s verdict that the jurors relied on Hoyt’s report and testimony, the trial
court’s error was harmful. See TEX. R. APP. P. 44.1(a)(1) (judgment reversible on appeal if error
complained of probably caused rendition of improper judgment). Enbridge’s fourth issue is
sustained.



                                                13
                                                   DISPOSITION
         Our disposition of Enbridge’s fourth issue makes it unnecessary for us to address
Enbridge’s remaining issues. Having sustained Enbridge’s fourth issue, we reverse the judgment
of the trial court and remand the cause for a new trial.




                                                                               BILL BASS
                                                                                Justice

Opinion delivered July 31, 2015.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                                   (PUBLISH)




                                                         14
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                            JULY 31, 2015


                                        NO. 12-13-00307-CV


                       ENBRIDGE G & P (EAST TEXAS) L.P.,
                                  Appellant
                                     V.
                 BEN SAMFORD AND WIFE, BETTE ANN SAMFORD,
                 CECIL JACKSON AND WIFE, MICHELLE JACKSON,
                             AND SAMMY MONK,
                                  Appellees


                               Appeal from the 273rd District Court
                       of Shelby County, Texas (Tr.Ct.No. 10CV31,096)
                        THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment be reversed and the cause remanded to the trial
court for a new trial, and that all costs of this appeal are hereby adjudged against the Appellees,
BEN SAMFORD AND WIFE, BETTE ANN SAMFORD, CECIL JACKSON AND WIFE,
MICHELLE JACKSON, AND SAMMY MONK, in accordance with the opinion of this court;
and that this decision be certified to the court below for observance.
                     Bill Bass, Justice.
                   Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                   sitting by assignment.
