State v. Brewer

Decision Date17 February 1943
Docket NumberNo. 8018.,8018.
Citation169 S.W.2d 468
PartiesSTATE v. BREWER et ux.
CourtTexas Supreme Court

Gerald C. Mann, Atty. Gen., and Richard H. Cocke, Geo. W. Barcus, and Ocie Speer, Asst. Attys. Gen., for appellant.

Collins, Williams & Garrison, of Lufkin, for appellees.

SHARP, Justice.

B. K. Brewer and wife brought this suit against the State of Texas and the Texas State Highway Department to recover damages to their rural property, allegedly caused by the construction and widening of Highway No. 69 in Angelina County. Authority to institute the suit was granted by Senate Concurrent Resolution 4, Second Called Session 45th Legislature. The jury found that the construction of the highway caused plaintiffs' property to depreciate $2,200 in value, and the trial court rendered judgment against the State and the Highway Department for that amount, together with interest from the time the highway was completed in 1936. The State appealed, and the Court of Civil Appeals, by a majority opinion, affirmed the judgment of the trial court, with Associate Justice Combs dissenting. 162 S.W.2d 466. This Court granted a writ of error because of the importance of the question involved.

When Brewer and wife bought the 71 acres of land here involved in 1927, said tract was crossed by Highway No. 69. Fifteen acres of the property lay south of the highway, and 55 acres lay north of the highway. Subsequently the Brewers built a beautiful house on a hill on the larger tract, facing the highway, and located about 160 feet north of the highway. The elevation of the highway is lower than that of the house. On March 13, 1935, the Brewers conveyed to the State, for a consideration of $180 cash, a strip of land 120 feet by 1,011 feet, containing 2.785 acres, including 0.675 acres then used by the old highway, by a right of way deed. The land conveyed, as shown by the deed, contained 2.785 acres, and the deed contained the following provisions:

"It is understood that the strip of land above described is not to be in excess of 120 feet in width, except as hereinafter stipulated, and contains 2.785 acres, more or less, of which the right of way of the present road occupies 0.675 acres, more or less. * * *

"And it is further agreed that the said B. K. Brewer, in consideration of the benefits set out, will remove from the property above described such fences, building and other obstructions as may be found upon said property."

Plaintiffs alleged that by lowering the grade of the highway approximately 16 feet below the level of the adjoining property, the State "changed, altered and disfigured" their property to such an extent that it "has been materially injured and damaged"; that prior to the road excavation they had used a portion of the 15 acres south of the highway for a cattle and hog pasture, for which the land was well suited, but as a result of the construction of the new highway the use of the 15 acres for pasturing purposes has been destroyed, because it was inconvenient and impracticable for plaintiffs to carry feed from the house to the pasture and to care for the stock; and that as a direct and proximate result of the construction of the highway the commercial value of their premises has been permanently destroyed and impaired, and their use, convenience, and enjoyment materially hampered and impaired; and that they have suffered damages in the amount of $3,500. Paragraphs 7 and 8 of plaintiffs' petition read as follows:

"The residence of these plaintiffs and the property on which it was situated was especially valuable because of its beautiful location, and had been constructed at the particular place where it was actually built because of its scenic beauty but as a result of the manner of construction of said highway adjacent to and immediately in front of their residence the beauty of the property and the improvements thereon have been greatly depreciated in value. Before the alteration of the highway plaintiffs' home was situated approximately on the same level with and near to the highway and persons traveling on and over such highway had a perfect view of plaintiffs' home and surrounding property but as a result of the material lowering of the level of the highway below the level of the adjoining property it is hardly possible for persons traveling on and over such highway to even see plaintiffs' home.

"As a result of the construction of the highway in the manner described it was necessary that plaintiffs move the driveway leading from the highway to their house and it was necessary thereafter that such driveway turn off from the highway several hundred feet East of their residence, whereas theretofore the driveway led to the highway immediately in front of their residence. Also, it has been necessary that plaintiffs' mailbox be placed on the same level with the highway as a result of which he was compelled to locate the mailbox immediately adjacent to the improved portion of the highway and because of the lowering of the level thereof below the level of the adjoining property it is especially inconvenient to the plaintiffs to go to and from the mailbox each day."

The petition contains no other allegations of damage. When summarized, it alleges that the lowering of the grade caused the following damages to plaintiffs' property: (1) "The original character of the premises has been materially changed, altered, and disfigured"; (2) the use of the 15 acres as a pasture has been destroyed, because it is inconvenient and impracticable for plaintiffs to cross the highway to attend the stock pastured on that tract; (3) "the beauty of the property," which "was especially valuable because of its beautiful location and * * * scenic beauty" and "the improvements thereon have been greatly depreciated in value," and persons traveling on the highway can no longer see plaintiffs' house, as was possible before the cut was made; (4) the entrance to the private driveway from the highway, which formerly was directly in front of the house, had to be moved several hundred feet down the highway; and (5) it is "especially inconvenient to the plaintiffs to go to and from the mailbox," which must be placed on the same level with the paved highway. The petition does not allege that the highway was not constructed according to the engineer's plan, or in a workmanlike manner, or that the State did not have a lawful right to lower the grade as it did, or that any agent of the State informed plaintiffs at the time they executed the right of way deed that the cut would be less than 14 to 16 feet deep.

The State presented a general demurrer and special exceptions to plaintiffs' petition, which were overruled by the trial court. At the close of the testimony the State filed a motion for an instructed verdict, and after the verdict was rendered filed a motion for judgment non obstante veredicto; both of which were overruled.

The jury found: (1) That the reasonable market value of the property immediately before the construction of the highway was $5,500; (2) that the reasonable cash market value of the property immediately after the construction of the highway was $3,300; (3) that the plaintiffs, prior to and at the time of the execution of the deed on March 13, 1935, did not know that the highway was to be constructed in the manner in which same was constructed; and (4) that plaintiffs did not consent to the construction of the...

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    ...and (2) for redress in negligence actions there must be a violation of a legal right and the breach of a legal duty, State v. Brewer, 141 Tex. 1, 169 S.W.2d 468 (1943). Stare We agree that some aspects of the English or common law rule as to underground waters are harsh and outmoded, and th......
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