Honorable CharlesA. Allen

Criminal DistrictAttorney Harrison County Courthouse Marshall, Texas Opinion No. C-270
RE: Whether Harrison County may legallypay to the Mount Ridge Baptist Church additional damages to itsproperty Dear Mr. Allen: under the stated facts.
You have requestedan opinion as to whether Harrison County may legallypay to the Mount Ridge Baptist Church additional damages to itsproperty under the stated facts. The Mount Ridge Baptist Church is located at the intersectionof Farm toMarket Road No. 1915 and Farm to Market Road No. 134 facing on Farm to Market Road 134. The facts appear to be that on March 3, 1961, the Commissioners'Court of Harrison County negotiated with and subsequently obtained a deed from the Mount Ridge Baptist Church of Karnack, Texas, for the purchase of 1.913 acres of land out of a 3.5 acre tract of land, for rightof-waypurposes. That at the time of the negotiationswith the Mount Ridge Baptist Church itwas not contemplatedby the Court,and was not known by themembership of the church that the improvements to Farm to Market Road No. 134 and Farm to Market Road No. 1915would result in a cut beingmade in front of the church on 134at such an angle as tomake ingress and egress to thepremises and to the church impossible from Farm to Market Road No. 134 or No. 1915. You further stated in your letter that Farm to Market Road No. 134was lowered between 30 and 40 feet, and thatby reason thereof ingress to and egress from the churchwas impossiblewithout going upon someone else'sproperty.
In City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943),the Court stated:
'Ina proceeding for the condemnationof a part of a tract of land for street or roadpurposes, it ispresumed that the amount of damages allowed covers all lawful elements of damages,whether

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direct or consequential,that could reasonably have been foreseenand determinedat the time of condemnation;and where a part of a tract of land -- is condemned forstreet or roadp --
-- urposes, the xner cannotrecom a subse uent foronse uential dam%eZ &a-he

. q Ed which he ought reasonzlhave foreseera?iF prese?iEFi?iY~n emna ionproceeding.' - d---- -- In Howard v. County of Nolan, 1959), the Court stated: 319 S.W.2d 947 (Tex.Civ.App.

"OurSupreme Court in State v. Brewer, 141 Tex. 1, 169 S.W.2d 468, 471, considereda case similar in many respects to the instant one. That suitwas brought, after legislativeauthority had first been secured,by B. K. Brewer and wife against the State of Texas and the Texas State Highway Department to recover damages alleged to have been caused by rebuilding the highwaywhich ran through their land to conform to a subsequentlypromulgated regulation requiring reductionof grades toprevent accident. The old road bed was on the same level as abutting property, but in building the new road, a grade cut about 600 feet in length and from 14 to 16 feet in depth, was made directly in front of the Brewer residence. There was evidence to the effect that the state engineer toldMr. Brewer at the time of the execution of the deed conveyingadditional land that the cut in front of his home would not exceed a depth of 3 or 4 feet. Aftermaking the conveyance to the State,plans were changed so that the cut was increased from 14 to 16 feet in depth. The view of the Brewer house from the road was thereby obscuredand other serious inconveniencesresulted to the Brewers for which they sought damages. Mr. Brewer testified that he would not have made the conveyanceof the right of way for a consideration of $180 if he had known that the excavation would be made to the depth that itwas. In holding that under these facts the Brewerswere not entitled to recover from the State, it was stated as follows: 'Theconveyance of land for a public purpose will ordinarilyvest in the grantee the same rights as though the land had been acquired by condemnation proceedings. * * * Grantors cannot recover for any damages to the remainder of the land, the land not conveyed,which result from a proper construction,

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Honorable CharlesA. Allen, Page 3 (No.C-270)

use, and operation of the highway on such property * * *.I
I* * * he did not testify that the engineer, or anyone else representing the State, agreed as a part of the consideration that the cutwould not be deeper than three to four feet, or thathe would be paid any additional compensation in case it should be. * * *I' The test apparently applied in the Brewer case is whether -- the change the highway construzizwas one reasonably to

-- -- beamated at the time the right-of-waywas acquired;zd

_--- ??iisin turn is dependentupon whether the improvementswere "made in conformitywith reasonable regulations for thepub1 safety." All damages arising from such improvementsare regarded as reasonablywithin contemplation in the acquisition of the right-of-way,are proper items to be considered in estimating the damages in condemnationproceedings, and are deemed included in the price paid or damages awarded in the right-of-wayacquisition. Miiam CountyVT Akers, 181 S.W.2d 719 (Tex.Civ.App.1943, error ref.w.o.m.). ic

The Court conceded the correctness of the above principles in the Akers case but contended that thewidening, rerouting, and contemplatednew construction constitutedan additional servitudeupon Akers'property, for which compensatory consequential damageswere recoverable. The Court also held in the Akers case that:

. . . theproper test here is whether the newly acquired right-of-way imposesburdens on the abuttingproperty which did not exist under the old right-of-way. The fact that some, or even all of the new constructionactually rests upon the old right-of-way is not controlling. When such construction isnot feasible or is impractical upon the old right-of-way,and the new acquisition is essential to it, clearly an additionalburden and servitude is created; for which compensatory consequentialdamage is recoverable."
In Howard v. County of Nolan, supra, the Court held that "if the grantors are entitled to any relief they are limited to an action for damages for additional servitude on their land."max m - Article I, Sec. 17 of the Constitutionof the State of

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Texas,provides: "Noperson'sproperty shall be taken, damaged or destroyed for or applied topublic use without adequate compensationbeingmade

. , . .' "Theweight of authority under the above constitutionalprovision is that an owner of land abutting upon a street or highway is entitled to damages for any permanent injury to such landby a material change of gradewhether from natural or a previously establishedgrade where such damages exceed the benefits derived from the change. Of course, if the owner has already been compensated for the damage suffered,he could not recover a second time. The test then as to whether he is -- articular cZEe?Ys

(Tex.Civ.App.1950, error ref. n.r.e.). (tiphasisours.)
*

. I the general rule is that access to a public highway is an incident to ownership of land abutting thereon and the corollary follows that this right cannot be taken or destroyed forpublic purposes without adequate compensationbeing given therefore." City of-SanAntonio v. Pigeonhole Parking of Texas, Inc., 158 Tex. 316, 311 S.W.2d 218 (1958).
In State v. Brewer, 169 S.W.2d 468 (Tex.Civ.App.1943), the Court held that:
'Togive a right of redress theremust not only be an injury or lossbut it must have been occasioned by the commission of a legal wrong, that is, violation of legal right and a breach of legal duty.' The burden rested on the Brewers to show that they sustained a loss by reason of the construction of this highway, and, furthermore, that such loss resulted from the violation of some legal right and the breach of some legal duty due themby the State." Included in your request for an opinionwas a copy of a letter from County Judge John F'urrh and an affidavit of County CommissionerWill M. Power who acted in behalf of the Commissioners' Court in negotiatingwith the Mount Ridge Baptist Church for the purchase of the subjectproperty. Both Judge
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Purrh and Mr. Power state thatneither they, as individuals, nor the Commissioners1Courtnor the church contemplatedat the time of negotiationand the execution of the deedby the church that the improvementswould result in a cut being made at such an angle as to make ingressand egress to thepremises and to the church impossible.
In view of th2s letter and affidavit itwas not reasonably foreseeable that access would be totally deniedby the cut, placing an additional servitude on the abuttingproperty, and since access is an Incident of ownership for which compensationmust be paid, It follows that there remains liability on thepart of the County for which the Countymay renegotiate with the Mount Ridge Baptist Church,

SUMMARYc----eHarrison Countymay legallypay to the Mount Ridge Baptist Church additional damages to itsproperty under the stated facts.

e-vYours very truly,
WAGGONER CARR Attorney General of Texas

BY

WEOrdc APPROVED1 OPINION COMMITTEE
W. V. Geppert, Chairman Milton Richardson Edward Moffett Carroll Graham Kerns Taylor
APPROVED FOR THE ATTORNEY GENERAL BY, Stanton Stone

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