Dallas Cotton Mills v. Industrial Co. , 1923 Tex. App. LEXIS 282 ( 1923 )

HAMILTON, J.

The following we find to be the facts of this case:

Dallas Cotton Mills is the owner of a block of ground in the city of Dallas bounded on every side by. a street upon which it abuts. It is bounded on the south by Corinth street, which extends east and west; on the east by .Cockrell street, which extends north and south; on the north by Burnett street, which extends east and west; and on the west by Barcley avenue, extending north and south. All of these streets, leading in the different directions indicated, furnish outlets through connecting highways to all portions of the city of Dallas. Lamar street, which extends north and south, runs, as it is presently situated, between two lots or plats of ground north of the block of ground owned by appellant, and opens into Burnett street, which, as stated, lies adjacent to the cotton mills’ ground. That portion of Lamar street lying between these two blocks of land which belongs to the Industrial Company, and which opens into Burnett street immediately opposite appellant’s grounds, is unpaved and otherwise unimproved, and is practically unused for traffic.

The city of Dallas, acting through its board of commissioners, in pursuit of a scheme in behalf of the public, determined to change the course of South Lamar street by abandoning that part of it which extends between the two blocks of land immediately north of* that owned by appellant above mentioned, and turning Lamar street across the eastern one of these blocks and connecting it with Cock-rell street at a point near the northeast corner of the ground owned by appellant. In pursuing this plan the city of Dallas was acting altogether in its governmental capacity within its discretion in behalf of the general public.

The ownership and control, of all streets in the city of Dallas are reposed in the municipality by the express terms of its charter, and it possesses the following charter powers :

“To lay out, establish, open, alter, widen, lower, raise, extend, grade, narrow, care for, pave, supervise, maintain and improve streets, alleys, sidewalks, squares, parks, public places and bridges, and to vacate and close the same, * * * and to vacate and close private ways.”

In the exercise of the authority conferred by the foregoing charter provision, on December 22, 1922, an ordinance was passed by the city commissioners providing for “altering and changing South Lamar street where the same intersects Alexander street and crosses the property in blocks D 1093 and D 1096 owned by the Industrial Company, and providing for the vacating of certain streets and alleys in blocks B 1092, C 1095, D 1093 and D 1096.” Before the ordinance was passed a deed;was executed by the Industrial Company to the city of Dallas conveying to the latter blocks B 1092, D 1093, C 1095, and D 1096, “lying between Austin street on the west and Cockrell street on the east and Alexander street on the north and Burnett street on the south.” These blocks included all the land on the two opposite sides of South Lamar street lying immediately across Burnett street from the Dallas Cotton Mills, Burnett street intervening and abutting on the north side of the Cotton Mills’ ground and on the side of the tracts by this instrument conveyed to the city of Dallas. This deed recited that the alteration and change of South Lamar street in this portion of it was deemed to be of great public convenience in order to afford a continuous thoroughfare into South Dallas,, and that in the judgment of the board of commissioners of the city of Dallas, it would greatly enhance the value of property in that vicinity by offering a more commodious means of public travel and access to the heart of the city of Dallas for commercial purposes. The consideration recited in the deed was $2,800 cash paid by the city of Dallas to the Industrial Company, and the vacating of South Lamar street as' shown on the map as running between blocks B 1092, C 1095, D 1093, and D 1096, as well as Dexter street, a street running east and west across Lamar street between blocks B 1092, and D 1093 on its north side, and C 1095 and D 1096 on its south side. This street nowhere abuts upon the Dallas Cotton Mills property, but is north of Burnett street, which, as aforesaid, intervenes between the block of land conveyed to the city and the Dallas Cotton Mills property. The deed also recited as a part' of the consideration the vacating of an alley north of and parallel to Dexter street extending through the property conveyed to the city. The ordinance above mentioned as having been subsequently enacted on December 22, ■1922, also provided for the vacating of all •these streets.

The property through which the above-named Lamar street and) Dexter street and the alley parallel to the latter extends is a part of a platted addition to the city of Dallas, known as the Blankenship & Blake Cotton Mills addition. Appellant’s property is also a part of this addition. Appellant acquired its property after the addition had been platted, the plat put of record, and property sold with reference to it.

The overwhelming weight of the evidence is to the effect that the vacating of Lamar street, or the closing of it, will not deprive .appellant of outlets through various thoroughfares which are as convenient and accessible for all of its uses as is Lamar street. The evidence also establishes the fact that vacating Lamar street through the property ■above described and turning it into Cockrell street will inflict no damage of any character •upon appellant.

Appellant seeks an injunction to restrain and prevent the city of Dallas and the Industrial Company from carrying into effect the transaction between them and to prevent them from proceeding with acts pursuant to the city’s purpose to abandon that portion of Lamar street involved in the controversy and from closing the street.

The appeal is bottomed primarily upon the proposition that- when appellant purchased its block of ground it acquired by that purchase an easement of way-in the portion of Lamar street which the city of Dallas proposes' to vacate and permit to be closed, and that it may not be deprived of this easement •except by due process of law, which it contends has not been pursued through the steps reflected by the foregoing statement of facts established by the evidence. The property of the Dallas Cotton Mills being so situated that it abuts on all sides on public streets which directly open into other thoroughfares leading to all parts of the city, the question of a way of necessity through Lamar street, or through any portion of the lots conveyed to the city, is not involved in the ease, and no contention founded on that premise is made by appellant'.

An owner of a lot which abuts upon a street has such an interest in that part of the street on which it abuts that if it is closed, or if its use as a means of access is Impaired, there is then a taking of private property for a public use, and such taking is not due process of law if it be done without •compensation being ascertained and paid as prescribed by law. However, this proposition, the soundness of which is not to be questioned, cannot be asserted in behalf of a property owner whose property does not actually ¡?btó on the street in question. It cannot be •extended to portions of streets separated from the owner’s property by intervening streets. In cases where it appears that the complainant’s property is removed from the portion of the street sought to be closed, and there is no physical contact between the property and the street, and the closing of it does not impair the owner’s access to his property, an injunction will not be granted at his instance to prevent the exercise of dominion over the streets to the extent of vacating, altering, or closing them by the public authorities under a grant of power such as exists in this case, expressly accorded by the Legislature. Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N. E. 341, 87 Am. St. Rep. 600; Wooters v. City of Crockett, 11 Tex. Civ. App. 474, 33 S. W. 391 (writ of error denied).

Where property has been acquired with reference to a map or plat placed of record, as appellant acquired its property, neither the original grantor nor any other person, for the accomplishment of his merely private purposes, can vacate or close any street or alley which the map or plat shows. Such person cannot change the original dedication and subvert the platted public highways to any use other than that indicated in the dedication with reference to which purchasers have bought. Nor can the officers of a municipal government capriciously or fraudulently vacate or close a street or turn it aside to any use different from that to which • it was originally dedicated. A municipality cannot abandon or close a street or alley in order to confer a private benefit or convenience. A property owner may avail himself of relief against any such acts by injunction under the above-enumerated circumstances.

But, while this is all true, the sovereign dominion of the municipality, clothed with legislative authority to alter, vacate, or close streets, overrides, when exercised in good faith, within the bounds of sound discretion and for the benefit of the whole public, all such rights and easements as property owners may have in those portions of the streets to which the property owned by them is not attiguous. If the land is not abutting, an owner cannot enjoin either the vacating or the closing of a street. He is to be regarded merely as a fellow sufferer with the rest of the general public if he is inconvenienced. If special circumstances exist which disclose that damages peculiar to the complaining property owner are inflicted upon him, then his adequate and exclusive remedy is afforded by a suit at law, and he still will be denied a remedy by injunction.

The following authorities support the conclusions above expressed: Wooters v. City of Crockett, supra; Kinnear Mfg. Co. v. Beatty, supra; Henderson v. City of Lexington (Ky.) 111 S. W. 318, 22 L. R. A. (N. S.) 20; Lamm v. Railway Co., 45 Minn. 71, 47 N. W. 455, 10 L. R. A. 268; Nichols v. Inhabitants of Richmond, 162 Mass. 170, 38 N. E. 501.

The judgment of the court below is affirmed.