Honorable Charles A. Allen 

Criminal District Attorney 

Harrison County Courthouse 

Marshall, Texas 

Opinion No. C-270 

RE: Whether Harrison County 

may legally pay to the 

Mount Ridge Baptist 

Church additional damages to its property 

Dear Mr. Allen: under the stated facts. 

You have requested an opinion as to whether Harrison County 

may legally pay to the Mount Ridge Baptist Church additional 

damages to its property under the stated facts. The Mount 

Ridge Baptist Church is located at the intersection of Farm 

to Market 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-way purposes. That at the time of the negotiations with 

the Mount Ridge Baptist Church it was not contemplated by the 

Court, and was not known by the membership of the church that 

the improvements to Farm to Market Road No. 134 and Farm to 

Market Road No. 1915 would result in a cut being made in front 

of the church on 134 at such an angle as to make ingress and 

egress to the premises 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. 134 was lowered 

between 30 and 40 feet, and that by reason thereof ingress 

to and egress from the church was impossible without going 

upon someone else's property. 

In City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 

243 (1943), the Court stated: 

'In a proceeding for the condemnation of a part 

of a tract of land for street or road purposes, 

it is presumed that the amount of damages allowed 

covers all lawful elements of damages, whether 

-1298- 
Honorable Charles A. Allen, Page 2 (No. C-270) 

direct or consequential, that could reasonably 

have been foreseen and determined at the time of 

condemnation; and where a part of a tract of land -- is condemned forstreet or road p 

-- 

-- urposes, the 

xner cannotrecom a subse uent 

foronse . q uential dam%eZ &a-he 

Ed which he ought reasonzlhave f oreseera?iF 

prese?iEFi?iY~n d---- emna ion proceeding.' - -- 

In Howard v. County of Nolan, 

1959), the Court stated: 

319 S.W.2d 947 (Tex.Civ.App. 

"Our Supreme Court in State v. Brewer, 141 Tex. 1, 

169 S.W.2d 468, 471, considered a case similar in 

many respects to the instant one. That suit was 

brought, after legislative authority 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 highway which ran through their land 

to conform to a subsequently promulgated regulation 

requiring reduction of grades to prevent 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 told Mr. Brewer at the time of 

the execution of the deed conveying additional land 

that the cut in front of his home would not exceed 

a depth of 3 or 4 feet. After making 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 obscured and other serious inconveniences resulted to the Brewers for which they sought damages. 

Mr. Brewer testified that he would not have made 

the conveyance of the right of way for a consideration of $180 if he had known that the excavation 

would be made to the depth that it was. In holding 

that under these facts the Brewers were not entitled 

to recover from the State, it was stated as follows: 

'The conveyance of land for a public purpose will 

ordinarily vest 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, 

-1299- 
. - 

Honorable Charles A. 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 cut would not 

be deeper than three to four feet, or that he 

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-way was acquired; zd 

_--- ??iis in turn is dependent upon whether the improvements were 

"made in conformity with reasonable regulations for the pub1 

safety." All damages arising from such improvements are regarded as reasonably within contemplation in the acquisition 

of the right-of-way, are proper items to be considered in 

estimating the damages in condemnation proceedings, and are 

deemed included in the price paid or damages awarded in the 

right-of-way acquisition. Miiam County VT 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 the widening, rerouting, 

and contemplated new construction constituted an additional 

servitude upon Akers' property, for which compensatory consequential damages were recoverable. 

The Court also held in the Akers case that: 

. . . the proper test here is whether the newly 

acquired right-of-way imposes burdens on the abutting property which did not exist under the old 

right-of-way. The fact that some, or even all 

of the new construction actually rests upon the 

old right-of-way is not controlling. When such 

construction is not feasible or is impractical 

upon the old right-of-way, and the new acquisition 

is essential to it, clearly an additional burden 

and servitude is created; for which compensatory 

consequential damage 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 Constitution of the State of 

-P300- 
Honorable Charles A. Allen, Page 4 (No. C-270) 

Texas, provides: "No person's property shall be taken, 

damaged or destroyed for or applied to public use without 

adequate compensation being made . , . .' 

"The weight of authority under the above constitutional provision is that an owner of land abutting upon a street or highway is entitled to damages for any permanent injury to such land by a 

material change of grade whether from natural or 

a previously established grade 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.). 

(tiphasis ours.) 

* . 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 for public 

purposes without adequate compensation being given 

therefore." City of-San Antonio 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: 

'To give a right of redress there must not only be 

an injury or loss but 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 them by the State." 

Included in your request for an opinion was a copy of a 

letter from County Judge John F'urrh and an affidavit of County 

Commissioner Will M. Power who acted in behalf of the Commissioners' Court in negotiating with the Mount Ridge Baptist 

Church for the purchase of the subject property. Both Judge 

-1301- 
Honorable Charles A. Allen, Page 5 (No. C-270) 

Purrh and Mr. Power state that neither they, as individuals, 

nor the Commissioners1 Court nor the church contemplated at 

the time of negotiation and the execution of the deed by the 

church that the improvements would result in a cut being made 

at such an angle as to make ingress and egress to the premises 

and to the church impossible. 

In view of th2s letter and affidavit it was not reasonably foreseeable that access would be totally denied by the 

cut, placing an additional servitude on the abutting property, 

and since access is an Incident of ownership for which compensation must be paid, It follows that there remains liability 

on the part of the County for which the County may renegotiate 

with the Mount Ridge Baptist Church, 

SUMMARY c----eHarrison County may legally pay to the 

Mount Ridge Baptist Church additional damages 

to its property 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 

-130t-