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Real Property No. 03-02-00579-CV, 7/24/2003. Click here for the full text of this decision FACTS: The appellants W.C. Carson and the Albar Family Trust appeal from the trial court’s judgment finding that they should take nothing by their inverse condemnation suit. HOLDING: Affirmed. The appellants contend that the trial court erred in failing to find inverse condemnation in the state’s decision to close the bus depot’s driveway which afforded appellants access to Wonder World Drive. The only conclusion of law that the appellants specifically challenge is the conclusion that Carson has no vested legal interest in the existing driveway. They implicitly challenge the conclusion that they will suffer no material and substantial impairment of access once the current driveway accessing Wonder World Drive is closed. The appellants do not specifically challenge the trial court’s findings of fact. Appellants refer to the bus depot driveway as a joint access drive, which can be interpreted as an attack on the trial court’s finding that the driveway “exists for the benefit of the San Marco ISD bus barn property.” At trial and on appeal, appellants refer to the existing driveway, which straddles the line between the bus depot and the state’s property, as a joint use driveway. However, Michael McKissick, engineer for the Texas Department of Transportation (“the Department”), testified that according to the department’s records, the driveway in question was built only for the bus barn. McKissick testified that generally when a driveway is condemned, the state builds a new driveway so the property maintains its same road access. McKissick also testified that if a driveway has to be removed but the property owner has other road access, the state “would deny him access to that particular roadway since he already has a driveway.” Whether a property has access to another road is a principal consideration for the state when it considers whether a property has reasonable access. The state argues that after it acquired the land on which the bus depot driveway lies, appellants’ predecessors did not obtain official permission to access their property from Wonder World Drive via the jug handle. The 1957 judgment awarding the state the portion of the Otwell tract on which the jug handle was built does not note that the state has taken any access rights; neither does it reserve access rights to the remaining Otwell tract held by appellants’ predecessors. The judgment simply grants the state fee simple title to the condemned property, which is now used as state right-of-way. By contrast, the judgment awarding the state a portion of the San Marcos ISD tract specifically reserves to the bus depot access onto Wonder World Drive. Although appellants have historically enjoyed access to Wonder World Drive by way of the bus depot driveway, it does not follow that they have a vested legal right to do so. A party cannot gain a legal right to property against the state by adverse possession. Weatherly v. Jackson, 71 S.W.2d 259 (Tex. 1940). When the department condemned the portion of land lying between Wonder World Drive and Carson’s tract, it took the land in fee simple and did not reserve any access rights to the remainder tract. At the same time, when taking the San Marcos ISD tract, the department explicitly reserved an access easement across the condemned property to Wonder World Drive. The record contains no information about the 1957 condemnation proceeding or judgment by which the court could conclude as a matter of law that appellants’ predecessors retained an access easement across the taken property. The state’s witnesses testified that the department’s records indicated that the driveway was built to provide access to the bus depot and was not intended as a joint access drive. The fact that the existing driveway straddles the bus depot’s tract and the condemned portion of the Otwell tract does not mandate a finding that the driveway was intended to provide access to appellants’ property. Nor is a finding of joint access mandated because appellants were allowed to use the drive or because a utility easement runs along the driveway and gravel road. Although it may be the better practice to include an explicit acquisition of access rights in a condemnation judgment or deed, the trial court could have infered that such was not the practice in 1957. Under that inference, the driveway is not on appellants’ land and is not a joint-use drive, appellants do not abut Wonder World Drive, and they are not by law entitled to ingress and egress by that particular roadway, having full access by way of the highway frontage road. The trial court properly concluded that appellants had no legal right to access Wonder World Drive through the bus depot’s driveway. Further, case law clearly holds that a property owner is not entitled to compensation unless his access is materially and substantially impaired. A landowner’s access is not materially and substantially impaired if he retains access to his property by way of a different street or a more circuitous route. In other words, a landowner is not entitled to compensation if he “has reasonable access to his property after construction of the public improvement. The benefits of private ownership have been assured so long as there is reasonable access and an action for compensation under the Constitution will not lie where such is the case.” DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965). Here, appellants retain full access to the I-35 frontage road. Access to their properties may be slightly more circuitous, requiring a turn onto the frontage road, but their properties are not materially or substantially impaired. OPINION: Smith, J.; Law, C.J., Smith and Puryear, JJ.

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