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 dam-
                                      ages 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 right-
of-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

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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 . quential dam%eZ &a-he
    Ed   which he ought reasonzlhave      foreseera?iF
    prese?iEFi?iY~n
               --        d----
                          emna ion proceeding.'    -
     In Howard v. County of Nolan, 319 S.W.2d 947 (Tex.Civ.App.
1959), the Court stated:
     "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 re-
    building 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 there-
    by obscured and other serious inconveniences re-
    sulted 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 consider-
    ation 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,

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


             use, and operation of the highway on such prop-
             erty * * *.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 ic
        safety." All damages arising from such improvements are re-
        garded 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.).
             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 conse-
        quential 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 abut-
             ting 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

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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 consti-
    tutional provision is that an owner of land abut-
    ting upon a street or highway is entitled to dam-
    ages 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 abut-
    ting 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 bur-
     den 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'urrhand an affidavit of County
Commissioner Will M. Power who acted in behalf of the Commis-
sioners' Court in negotiating with the Mount Ridge Baptist
Church for the purchase of the subject property. Both Judge

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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 reason-
ably 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 compen-
sation 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----e-
              Harrison County may legally pay to the
         Mount Ridge Baptist Church additional damages
         to its property e-v-
                         under the stated facts.
                                Yours 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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