I am unable to concur in the judgment of affirmance in this case.
On the undisputed evidence, as I view it, there is no basis in law for fixing a liability against the State for additional compensation for damages caused the residue of appellees' property by deepening the cut. There was already a public highway at the location in question. Appellees conveyed to the State additional right of way needed for widening and improving the highway for an agreed compensation of $180 which was paid. The conveyance was absolute and unconditional. True, Mr. Brewer testified that the State engineer told him the cut in front of his property would not exceed a depth of three to four feet. And also testified that he would not have made the conveyance of the right of way for $180 if he had known the excavation would be made to the depth that it was. In other words, his testimony was to the effect that his damage was much greater than he anticipated it would be when the conveyance was made. But he did not testify that the State engineer, or anyone else representing the State, agreed, as part of the consideration, that the cut would not be made deeper than three to four feet, or that he would be paid any additional compensation in case it should be. Neither is it contended that the representation made by the engineer was not a good faith expression of his opinion at the time. The engineer merely told Mr. Brewer that the plans for the contemplated road improvement called for a cut three to four feet deep, which was true. But later new regulations were promulgated by the State Highway Department, which required grades to be reduced in order to allow a longer view ahead by motorist crossing hills, thus reducing the dangers of accidents. And when the improvement in question was later made the cut was excavated much deeper than originally contemplated in order to make the grade conform to the new regulations.
I am unable to see how these improvements made in a proper manner, in conformity with reasonable regulations for the public safety, could give rise to any liability against the State for additional compensation. Having conveyed the right of way to the State for highway purposes, the appellees were charged with notice of the right of the State to make all needed and necessary improvements on it. As I have said, the conveyance was absolute and unconditional. There was no promise, express or implied, that the State would pay to appellees any sum in addition to that paid them at the time the conveyance was made. Hence, it seems to me, the agreed compensation of $180 must be presumed to have been in full payment for all damages which might accrue to the residue of appellees' property. It amounted to an agreed valuation of anticipated damages and payment of the "adequate compensation" therefor contemplated by the Constitution. Article 1, Section 17, Vernon's Ann.St. Or, to view it from a different angle, appellees' deed vested the State with title to the right of way, and the State had the legal right to make all necessary improvements thereon incident to the proper construction and maintenance of the highway for the public use. Such improvements, properly made, could give rise to no right or claim for damages by the appellees, since they were but natural, legally foreseeable, results incident to the use of the right of way for a highway — the very purpose for which the land was conveyed.
As I see it, the case of City of Houston v. Bartels,36 Tex. Civ. App. 498, 82 S.W. 323, 469 (prior opinion same case,32 Tex. Civ. App. 389, 74 S.W. 326, 328) is not controlling. That case is clearly distinguishable on the facts. In that case the Court of Civil Appeals held that the excavation in question was "neither necessary nor proper." Furthermore, the damage was not of a nature that reasonably could have been foreseen and anticipated by Mrs. Bartels when she conveyed the street right of way to the City of Houston. It was occasioned by an extension of the street and erection of a bridge incident thereto. The damage to her property arose because the city authorities were unwilling to spend the extra sum of money required to build the bridge and the *Page 471 approach thereto in a proper manner, and thus avoid the injury to her property. In that connection the court said (82 S.W. page 324): "When plaintiff deeded the property to the city it does not appear that she had any reason to apprehend that the city would so plan the improvements as to sacrifice her property on the altar of municipal economy."
In the present case no such situation obtains. Any person unconditionally conveying a right of way to the State for highway purposes must be presumed to know that the conveyance thereby vests in the State the right to subject the property to all necessary and proper improvements for the service of the public. Conditions surrounding motor travel on public highways are subject to constant change. The right of the State to make all needed improvements from time to time in the interest of public convenience and safety is universally recognized. And one conveying a right of way to the State for a public highway is therefore presumed to have anticipated such incidental damages as may result to the residue of his property by such use. Unfortunately, the depreciation in the value of appellees' property has been for more than the $180 for which they sold the right of way. But their position in that respect is no different from what it would have been had they conveyed the property to a private individual for a price which later proved to be inadequate. Were this not so there would be innumerable claims against the State for incidental damages to adjacent property occasioned by necessary improvements of the state highways.
It follows that I think the appellees have no cause of action against the State, as a matter of law, and that the judgment of the trial court should be reversed and rendered. *Page 732