*1 AKERS. MILAM COUNTY 9434.
No. Appeals Austin. of Texas.
Court Civil
May 1944.
Rehearing June Denied Gunn, and E. & Wallace A. Ed Wallace Cameron, appellant.
Wallace, all *2 Camp, all of some 16 of the from north line Camp Camp A. feet the & E. and highway strip on Rockdale, appellee. and graveled private Akers had constructed a driveway parking off for convenience McCLENDON, Chief Justice. practically on a which was suit a condemnation This is yard, except level with his front for a Akers County) against County (Milam drainage roadway ditch and between the portions designated to condemn certain graveled north A line. just east Cameron his farm situated driveway along side extended the east also rerouting in widening, purpose yard highway fence to his from the Highways part reconstructing State and garage at yard N.E. corner by the appeal is Nos. 77 and 36. The facing easy south. There was access also special County upon a judgment, from a by graveled driveways loading to his at verdict, damages assessing the issue chutes, scales, etc., to the resi- east of his $5,650, the value of which $800 dence, readily could driven cattle $4,850 damages actually land taken and highway portion across the from one The on the farm. issues to the rest of appeal the farm highway to the other. The across item; to to the latter relate dumps bottom was partly constructed on understanding which the follow- a clear ing partly upon three trestles. The latter evidence, most viewed statement farm, were not fenced off and at favorably judgment, will support places high enough pass to cattle suffice: at will highway from one of the side County acquired by deed In 1924 other. outline was pertinent right-of-way 100 its then a early owners situation in 1943 when farm, upon County which was the feet wide across instituted this at highways two which request” constructed the “direction and of the State point. The farm com- Highway coincident at this All legal Commission. of the acres, prised of which 124.8 complied with, formalities were agreement highway. It north and 92 south of not be reached with regarding Akers River, damages, bounded Little his east appoint- on commissioners were ed, highway who, on an iron which the crossed hearing, after notice and filed portion farm bridge. greater The their award on March assessing lay subject to bottom in the river $3,000, at of which $800 frequent portion A on overflows. small the value actually land taken and $2,200 its western nearest Cameron was on side the rest farm. part high County of which was not ground, filed objections report to this flood, highest 23, 1943, known to overflow from the March $3,000 at the same time depositing highway both 1921. The traversed registry of the court. Akers high ground Akers the bought and bottom land. filed no exceptions award, formal to the $12,500 September in 1938 for at 25, 1943, the farm filed an elaborate greatly improved. petition time was answer in condemnation and extensively engaged in fat- buying, County’s objections He was market; shipping tening cattle his were set out with much headquarters in that particularity. made this farm business. In highway right-of- new way he erected a residence wide, was 120 feet it crossed the thereon, improvements made proposed river on a bridge just iron sheds, lots, consisting barns, dipping south of existing bridge. piers scales, chutes, vats, loading etc., bridge essential of the new had been constructed at These were all to his business. located the date of trial. From the bridge to a high ground; 1,800 on the residence about feet east of Akers’ improvements house, being most of the other where the north line of the new barns being north some of the lots intersected the south line of right- highway. of-way, strip residence south was a narrow about 1.3 $7,000) rooms, had (costing eight was of acres between highways. and new upon a frame construction concrete founda- From this intersection the north line of tion, porches. three concrete floored along new is the a yard of a It was the center about about 180 feet east of Akers’ by plank fence, square, sup- yard enclosed feet fence where it intersects the old north posts ported line, iron set in a concrete off triangular and cuts strip widen- curbing. The front fence was ing set back until it reaches line, Akers’ west County under has briefed case triangle is within line of
north
points
assign-
predicated upon
the ten
thirteen
supporting
curbing
inches of
few
driveway ments
of error in its amended motion
private
All
yard
fence.
thereby included
trial. The substance of these
the house
in front of
following
the be
*3
line of
reduced to the
contentions:
highway. The south
in the
new
that of the
intersect
highway
does
In
1.
so far
the new construction
is
Akers’ land
until a
west
old
upon portions
right-
was
of the
built
old
embraces
highway
Thus
reached.
the
of-way
greater
(and this was
of the
true
with additional
highway,
old
all
strips
the
portion
re-
dump)
of the
there could be no
aggregating
(but
varying
width
covery
consequential damage
the
to
side,
Akers’ west
feet) on either
farm,
County
acquired
because
had
yard
his
east of
a
180 feet
to
line
old
which carried with
the com-
point eastward
fence. From that
right
any
improve-
to make
reasonable
vanishes
and
right-of-way diminishes
mon
ment,
change
grade thereon. Akers
or
original
1,600
The
altogether
feet.
at about
improve-
had built his residence and other
reconstruction
plans called for entire
knowledge
right,
ments with
and
of that
bridge
highway.
of the
The elevation
might
with constructive
that it
notice
entirely
raised,
across
from there
and
County
exercised at
time the
should
upon
roadway
a
was to be
the bottom
proposition
presented
see fit.
piers.
From
supported
concrete
trestle
error,-—
ways
assignments
several
by
high-
the new
of this trestle
the west end
way
; by
exception
(1
3)
pleadings
to
and
dump.
grade
be on
was to
a
exceptions
requested
charge
and
to
slightly
down
the new road
7);
special charge
(4, 5, 6
and issue
Akers’
bridge
In front of
westward.
by objection to evidence of fourteen wit-
top
dump
be five
would
house the
;
(8)
by objection
nesses
verdict
roadway, about a foot
above the
feet
(10).
yard fence,
practically
above
front
his
Injury
2.
to Akers’ business
not a
line
his front window-sills.
with
damage (2).
item
recoverable
dump
increase to the east
would
residence,
Evidence of
3.
of the
cost
eight
high
feet
would be some seven or
and of its removal
improperly
another location was
highway
barns.
front
(9
10A).
admitted
plans
engineer
original
testified that the
lowering
changed, resulting
(11).
4. The verdict
been
was excessive
had
grade
dump in
front of
exceptions
Since Akers filed no
5.
However,
plans
house some two feet.
were not final and
recovery
his
not exceed
to further
$3,000 (12).
its ampunt,
change. The evidence
without con-
showed
proposition is
The first
based
contemplated
flict
new construction
accepted
following generally
rule:
could not be erected
the old right-of-|
rights
highway is
public
in a
"One of the
way.
shown resulted fromi
public
changing
grade as the
that of
highway in
widening front of thej
necessity
from time
and convenience
house,
raising
grade
high-i
require;
consequently,
as a
contemplated
They!
way to the
elevation.
rule,
of a
in the absence
constitu
depreciation
consisted
market value of
statutory provision
con
to the
tional or
the rest of
it
farm for
uses to
municipality
governmental
trary,
or
adapted
put,
elements of
abutting
liable
an
owner
agency is not
cutting
which arose in the main from
off
consequential damages resulting from
space
yard
between the front
and the
changing
grade
grading
or
highway; decreasing the
distance be-
highway in front of
or
the street
raising
tween the residence and
if he owns the fee of the
even
premises,
grade
residence, garage
in front of the
Am.Jur., p.
highway.”
land within the
841,
improvements;
to obviate the
other
applies, regardless
This rule
§
inconvenience
effects
deleterious
'
acquisition
the method
of
of-way
require
an
would
re-
of
arrangement
entire
by purchase, condemna
driveways
the various
—whether
donation,
appli
prescription. The
tion,
highway
giving
access from
to his
many
instances
rule has
cation of
improvements,
residence and other
and the
(see
great harshness
worked
v.
locations of such
removal to suitable
struc-
468),
Brewer,
141 Tex.
S.W.2d
improvements.
tures and
provided in
Other cases to the
against which is
same effect are Wool
relief
Co.,
jurisdic
dridge
some
v. Eastland
70 Tex.
8 S.W.
and statutes of
constitutions
state, 503;
Scott,
Tex.Civ.App.
persists
in this
Llano Co. v.
rule
tions. The
County
Two recent
21 S.W.
Parker
such modification.
without
Jack
son,
Supreme
5 Tex.Civ.App.
rule
,
(above)
found
the Brewer
Court are
proper
test here is whether
Pieratt,
(LaGrange v.
Tex.
and Pieratt
newly
acquired
imposes
243) cases.
Sup., 175 S.W.2d
burdens
abutting property
on the
with the
here concerned
did not
right-of-way.
exist under
the old
We
some,
where there has The
in cases
fact that
or even all of the new
rules announced
(Wich
actually
surface waters
diversion
rests
*4
Mauldin, Tex.Com.App., 39 right-of-way
controlling.
v.
ita Falls
When
Hale, Tex.Civ.App.,
859;
v.
such
construction is not
im-
S.W.2d
feasible or is
practical
136
135,
upon
affirmed
on
right-of-way,
96 S.W.2d
29,
negligent,
731),
acquisition
or a
it,
146 S.W.2d
the new
clearly
Tex.
is essential to
“unnecessary
improper” street construc
an
or
additional burden and
is
servitude
created;
municipality (City of Houston
by
compensatory
tion
for which
con-
498,
Barrels,
Tex.Civ.App.
sequential
82 S.W.
36
damage
v.
is recoverable.
323, 469).
assignments upon
which the first
predicated
contention is
are overruled.
apparently applied in the
The test
change in the
whether
Brewer case is
The second contention is overruled
reasonably
one
highway construction was
upon
authority
of Hart Bros. v. Dallas
right-of-
anticipated
the time the
to be
at
County, Tex.Com.App.,
S.W.
acquired;
this in turn is de
way
was
LaGrange, Tex.Civ.App.,
Pieratt v.
improvements
upon
pendent
whether
377, approved
point,
S.W.2d
to this
Tex.
as
conformity
reasonable
in
with
were “made
Sup.,
assignment
175 S.W.2d
safety.”
public
All
regulations
for
upon which this contention is based com
improvements
arising
such
plains
overruling
exception
of an
reasonably within con
regarded as
are
setting
injury
forth
answer
acquisition
templation in the
upon
inflicted
the new construction
of-way,
proper items to be considered
injury
cattle business. The
was not as
damages in
estimating the
condemnation
separate
damage
item
serted as a
but
are deemed included
proceedings, and
affecting the market
value of
paid
awarded
price
adapted
farm
uses which it
acquisition.
right-of-way
put.
being
proper
As such it was a
principles
of these
The correctness
subject
pleading
proof.
His contention is
Akers.
is conceded
is true
reference
The same
widening, rerouting and contem
chat
the cost of the residence
evidence of
ad
constituted an
plated new construction
to another
location
its removal
and of
property,
upon his
for
servitude
ditional
3, above). These were matters
(contention
compensatory consequential damages
evidentiary
upon
bearing
the issue
having
agree.
In this we
As
recoverable.
were
what extent
the market
and to
whether
stated, the evidence showed without
above
depreciated
farm had
value of the
partially
widened and
that the new
conflict
widening,
re
right-of-way
essential
rerouted
routing and reconstruction
old.
construction;
objec
contemplated new
They
not constitute
measure of
did
accomplished
be
tives
depreciation in
damage, which was the
circum
right-of-way. Under these
the old
value,
proper
elements
market
clearly
the new construction
stances
arriving
at
consideration
contemplation at
reasonable
within
fully
is
This
treated with
measure.
acquired. The
right-of-way was
sit
the old
Carpenter,
namely the “by taken) that (other than land fact of the condemnation.” reason part of that the new embraced wheth nothing to do with has sought arose er the issue condemnation, regards except as in the they embraced whether McAllen, appellants. Bounds, R. M. predecessor of-way deed Polk, Pharr, appellees. L. J. (as the they so embraced If title. re they were not County contends) then NORVELL, Justice. they had coverable, reason that en We already compensated for. wife, Appellants, R. M. Schmuck and original in' plain deavored make it our Schmuck, against Mina H. suit embraced, they opinion not so appellees, Mayfield, T. S. Constable undisputed evi for the reason that under Texas, 8, Hidalgo County, Precinct No. contemplated dence new construction Security Juan, Bank of San and rerouted that which the widened Texas, seeking perpetual injunction re- reasonably admitted straining the constable and bank from contemplation and Pieratt (Brewer execution, selling under certain writ practic cases, not feasible or above) was real property described as South twen- right-of-way. 100-foot able on ty Kelly-Pharr acres Lot No. therefore, resulted ex damages, These Subdivision lands in Porciones im clusively from the additional servitude Hidalgo County, claims Texas. The bank posed by the condemnation. judgment under a rendered in its favor and *6 against Schmuck, R. principal M. The motion is overruled. $5,389.32. Appellants sum asserted that Overruled. property constituted their homestead. jury, The case tried to a but at the taking conclusion of of the evidence jury instructed the find for appellees, judgment appellants and a nothing take was rendered. Two witnesses testified trial be- Constable, MAYFIELD, ux. v.
SCHMUCK et testimony appellant low. The R. M. et al. Schmuck briefly summarized as follows: No. 11422. sixty-eight years Witness is age forty-three has been married years. In Appeals of Texas. San
Court of Civil purchased property involved, he Antonio. making with the intention of a home there- June on. He now owns no other real estate with- of Texas in the State and has continually 12, 1944. Rehearing July Denied maintained his intention to make his home upon the here tract involved. Schmuck wife, however, never lived tract and never erected buildings the thereon. At one Schmuck did discuss building the matter of a house with a con- Harry tractor named Bersett. Certain plans tentatively formulated, but no undertaken, actual except proposed driveway that a built “up driveway little bit.” This good now, although parts condition of it can still be seen. purchase, the time of Schmuck’s At young land was set to citrus trees. These maturity, have Certain