Shelton v. Phillips , 1921 Tex. App. LEXIS 143 ( 1921 )

The following "conclusion of law" was made by the trial court:

"From the facts found herein, and from the facts recited in the judgment, the court is of the opinion that the plaintiff is not entitled to recover, and accordingly enters judgment for the defendant."

Appellant's third assignment of error assails the conclusion of the court upon the ground that, there being in fact an encroachment upon the alleyway, appellant, as a purchaser of the lot adjoining the alley, has such an interest in the unobstructed use of the way, in the nature of an appurtenance to his lot, as to entitle him to the injunction prayed for to abate the obstruction of the alleyway.

The special findings of fact of the trial court show "that the improvements now being constructed by the defendant encroach 7.85 feet in the alley." And the appellant, in his petition, predicates the right to an injunction in his own behalf upon the ground that the encroachment will, as alleged, "close and obstruct" and "cut off" "the only mode of egress and ingress to the rear of plaintiff's premises." Finding, as the trial court did, that the appellant bought his lot "with reference to the alley" exhibited on the map of the addition, he acquired a particular easement in the land designated on the plat or map as an "alley." Oswald v. Grenet, 22 Tex. 94; Harrison v. Boring, 44 Tex. 255; Wolf v. Brass,72 Tex. 133, 12 S.W. 159.

"Such purchasers," as stated in Wolf v. Brass, supra, "have, by virtue of the easement thus acquired, the right to have such street or alley kept open whether the public has or not accepted the dedication by some acts of user."

The means of free egress and ingress through the alley to such lot and the buildings thereon is as much property as the lot itself, and is a right, in a legal sense, appurtenant to the lot. The existence of the alley as platted is an inducement to the purchase of the lot, enters into the consideration as between the grantor and grantee, and adds to the value I of the lot by the convenience and advantage which it gives. It is settled law, then, as asserted by appellant that a lot owner may, and does, have, as appendant to the lot, a private right to free passage over the alley represented on the plan of the addition. Although the lot owner has the right, as appurtenant to his lot, to free passage over the alley, the public, in common with the lot owner, has the right to use it. For, when a plat of land is recorded on which streets and alleys are shown, there is an implied covenant, not merely that the purchaser of a lot shall have the right of passage over the street and alley upon which the land is situated, but that the general public may use it. And therefore any disturbance or invasion of the right of free passage in the alley may, in its circumstances, be public in its general effect upon the community at large, or special and private to the lot owner as a particular damage distinct and apart from the common injury to the public. If the injury is common to the public, and not special and particular to the lot owner, the redress in the nature of abatement of the encroachment must be in behalf of the public, by a proper representative. If, however, the encroachment constitutes "a particular injury" or special damage to the lot owner, different in kind from that suffered by the community in general, then such lot owner may, by action in his own behalf, abate by injunction the encroachment in the alley. 1 High on Injunctions (4th Ed.) §§ 762, 763; 37 Cyc. p. 253; Joyce on Nuisances (1906) § 218, Evans v. Scott, 97 S.W. 116; Shephard v. Barnett, 52 Tex. 638; City of San Antonio v. Strumberg, 70 Tex. 366, 7 S.W. 755.

"The right of an individual to obtain an injunction," quoting from Joyce on Nuisances, supra, "is not recognized unless he has suffered some private and material damage or injury, differing in kind from that suffered by the public at large. The gist of the action in this class of cases is the private injury, and the plaintiff must allege and prove some special damage different in kind from that suffered in common with the public. When this is done he will be entitled to an injunction restraining such nuisance and may recover damages from the one causing the same."

And quoting further from section 222:

"One who owns property abutting on a street has not only the right in common with the public of using the street from end to end for the purpose of passage, but also has the individual right of free and convenient passage from and egress to his property, which is a private and personal right unshared by the community, and if taken away or materially impaired by an unauthorized obstruction of the highway such owner sustains a special injury different in character from that sustained by the public which will entitle him to maintain an action to enjoin the continuance of the same."

And in 1 High on Injunctions it is laid down that —

"Since the owner of land abutting upon a public highway has, as appurtenant to his property, an easement consisting of the right to the free and unimpeded use of the street to its full width, any permanent obstruction whereby he is totally or practically deprived of such right, even though such obstruction be under legislative authority, constitutes a taking of private property without compensation and will be enjoined."

It is not necessary, though, to entitle the lot owner to this remedy, that all access be cut off to the lot. Aldrich v. Wetmore, 52 Minn. 164,53 N.W. 1072; Bannon v. Murphy (Ky.) 38 S.W. 890; Kalteyer v. Sullivan,18 Tex. Civ. App. 488, 46 S.W. 288. In the latter case a portion of the alley "was closed" and this fact was held to be a "special injury" entitling the plaintiff to injunction. In Bannon v. Murphy, supra, the court decided that the lot owner "suffered an injury peculiar to himself" when "one end of which [alley] is obstructed so that he cannot have egress from his property to other streets in that direction." He has the right of free passage, as seen, in that alley, "in that direction." Likewise in Brakken v. Ry. Co., 29 Minn. 41, 11 N.W. 124, the street in front of the property was obstructed "so as to practically cut off all public access to it." In Decker v. Ry. Co., 133 Ind. 493, 33 N.E. 349, the plaintiff was held not entitled to enjoin the defendant from laying its track on the street because it appeared, in point of fact, that the construction of the road on the street did not —

"cut off, or materially interfere with, the appellant's ingress or egress to or from his lot or the buildings thereon. The inconvenience which he will suffer, as far as appears from the record in this case, is such as the public generally, who use the street, will suffer. For such an injury, as we have seen, he cannot recover."

In Aldrich v. Wetmore, 52 Minn. 164, 53 N.W. 1072, the street and sidewalk in front of plaintiff's business house was obstructed, and approach to the building cut off, except by means of the sidewalk from the north, and the trial court found as a fact that the damage from the encroachment —

"was not special or peculiar to the plaintiff, but the same in kind as that sustained generally by the public by reason of the obstruction of the public highway."

On appeal the court sustained the finding of fact of the trial court, stating that "the fact that all access is cut off by the obstruction is, in and of itself, special damages which will authorize a person to maintain a private action," but "the fact that the obstruction did not cut off access to his land is one fact, among others, showing that no special or peculiar damage was proved." And in the instant case it would depend upon the facts proven as to whether or not the appellant has shown, as devolved upon him to do, such special injury as entitled him to the injunction as a private right.

The trial court concluded from the evidence —

"that the plaintiff's premises and the other property in the block will be in no way damaged or injured by the improvements being constructed by the defendant, or the closing of the west end of said alley."

This is, in effect, a finding that the appellant suffered no special or peculiar injury by reason of the encroachment. There is ample evidence to support this finding, and we are not warranted in setting same aside.

The defendant's improvements encroach, as the court finds, 7.85 feet on the alley, and behind a part of lot 1 only. The alley is 20 feet wide and extends from west to east through the entire block. Appellant's lot is on the southeast end of the block. The encroachment is on the northwest end of the block. The facts then show that the encroachment did not, as claimed in the petition of appellant, "close up and obstruct said alley" and "cut off his right of egress and ingress" to his lot. A full way of 12.15 feet in the alley was open and unimpeded, and convenient for all reasonable use as a means of egress and ingress to his lot, and buildings thereon. There was neither entire nor material interference with the ordinary use o the alleyway as a passageway for pedestrian and vehicles. And there was full approach to appellant's lot from the street on the east This being true, as found by the court, tha the appellant suffered no special injury b: reason of the encroachment, it follows tha the obstruction extending on the alley 7.85 feet then constitutes, in the facts, only such Inconvenience and damage to appellant as the public generally who use the alley will suffer. As laid down in Smith v. McDowell 148 Ill. 51, 35 N.E. 141, 22 L.R.A. 393 where the obstruction extended into the street five feet for the length of 85 feet

"the permanent encroachment upon a public highway or street, unauthorized by the legislature, and the creation of a purpresture therein, which obstructs the free and uninterrupted passage of the public, is, as a matter of law, a public nuisance. The matter of inconvenience to the public, or that sufficient of the street may remain unobstructed to still accommodate the public travel, cannot be considered. The trustee of the public — the municipality — is charged with the duty of keeping and maintaining the streets, in all their parts, open and unobstructed, and in reasonably safe condition, for the public use. No question of the amount of damage done, or that may ensue, from the creation of the purpresture is raised, or can be considered in proceedings by the public, the question being simply whether there has been an invasion of the public right. When the proceedings are instituted by a private individual * * * the gist of his right of action is private injury to him."

Thus it is shown the difference between the private and public right to abate an encroachment of a street or alley. As the appellant suffered no special damage in point of fact, as found by the court, by reason of the encroachment, it follows that the injunction may not be granted to him in his private right, as he claimed here. Therefore we think the assignment of error should be overruled.

The appellant cannot complain of that part of the decree voluntarily laying out a passageway across lot 8. The lot belonged to appellee. Assignment of error No. 4 is overruled.

The other assignments of error are overruled.

Judgment affirmed.