Terry v. City of Dallas , 175 S.W.2d 97 ( 1943 )

This suit by City of Dallas sought to enjoin appellant from operating his used parts and automobile wrecking business in a residential district; the defense urged thereto being (1) that defendant had a nonconforming use at the time the zoning ordinance was enacted; and (2) that the classification of the particular area as a dwelling district was unreasonable, arbitrary and discriminatory, without substantial relation to the public health, safety, morals, or general welfare of the community; hence, unconstitutional and void. Upon trial to the court of the City's application for preliminary injunction, after ruling on exceptions and introduction of evidence, the court ordered issuance of temporary injunction, whereby Terry was wholly prohibited from using his premises as a place for wrecking automobiles, or for storing and selling used parts; the restraint being suspended, however, by a permitted filing of supersedeas bond, pending appeal.

Appellant's points of appeal are, in effect, that the record establishes his above defenses as a matter of law, with resulting error in the adverse order under review; that aside from this, aforesaid temporary order, in disposing as it does of the entire controversy prior to a trial on the merits, is likewise erroneous.

The court sustained exceptions to all allegations of defendant claiming a nonconforming use and, we think, properly so; at least, no point has been made of such ruling here. The Dallas zoning ordinance became effective in September, 1929, at which time the fact is undisputed that previous owners of defendant's premises had used the same as a mattress factory; then as a plumbing shop, and from 1931 or '32, as an auto wrecking yard. Appellant purchased the property in 1937, continuing to use the iron building thereon and adjacent grounds for wrecking secondhand autos and sale of used parts. The premises, known as 1021 South Ewing, in the Oak Cliff section of Dallas, were in a "B-Area," or residential district, so designated by the original zoning ordinance; however, 80 feet to the south of Terry's 128-ft. lot, a small retail district is shown on plat exhibits, fronting on both sides of Ewing to a depth of some 200 feet.

Appellant's several appeals to the Board of Adjustment, after December, 1938, whereby he obtained temporary permits, have already been detailed in the opinion of Associate Justice Looney; to which may be added Terry's statement to the Board in his first appeal, viz.: "I bought the property for such use in good faith, as the former owner had operated such business thereon and informed me that I would be able to continue such business." From the successive orders of aforesaid Board, Terry did not prosecute a court appeal, and the instant suit was thereafter filed. Art. 1011g, Vernon's Ann.Civ.St., governs appeals from decisions of a board of adjustment, and under our construction thereof in Washington v. City of Dallas, Tex.Civ.App. 159 S.W.2d 579, the Board orders above mentioned have become matters of res adjudicata; and appellant's renewed claim of nonconforming use, being in the nature of a collateral attack thereon, cannot again be litigated.

Appellant's further defense involves constitutionality of the ordinance that restricts his lot to a residential use, and, in this connection, assumes the burden of showing that the particular classification is clearly unreasonable and arbitrary, without any substantial relation to the public health, safety, morals, or general welfare. Luse v. City of Dallas, Tex.Civ.App. 131 S.W.2d 1079, writ refused; City of University Park v. Hoblitzelle, Tex.Civ.App. 150 S.W.2d 169; Connor v. City of University Park, Tex.Civ.App. 142 S.W.2d 706, writ refused; City of Dallas v. Lively, Tex.Civ.App. 161 S.W.2d 895, writ refused. On this preliminary hearing we cannot presume a full development of facts from either side. However, appellee insists that the record without dispute establishes the area as de facto residential; the right to preliminary injunctive relief following as a matter of law; likewise precluding the possibility of any other and different judgment upon final trial, citing City of Dallas v. McElroy, Tex.Civ.App. 254 S.W. 599. In view of all defensive testimony, but without comment on the weight thereof, we conclude that the instant record does not warrant application of the principle involved in Dallas v. McElroy.

Briefly stated, a survey of the territory reveals: Ewing Avenue continues across the G. C. S. F. Ry. tracks southwardly through Oak Cliff, and is a paved, well-traveled highway. The block adjacent to the railroad (some 1,200 feet from Terry's lot) is "5-C" or first manufacturing, but beginning with Fifteenth Street, which intersects Ewing, the area under attack is "B-1," or residential on both sides of Ewing to Eighteenth Street and beyond, defendant's lot being some distance south of the Seventeenth Street intersection. A street view of the premises shows an iron building, with high board fence, a vacant lot to the left, while across is a vacant block from which a school building has been moved. While a number of residences occupy both sides of Ewing, several tourist cabins are shown north of appellant at Seventeenth Street, also a chicken hatchery some 750 feet farther down on the Eighteenth Street corner. Roy Eastus, defense witness, termed the vicinity a "blighted area," in which no new homes have been built within the last ten or fifteen years, his company refusing to loan money for such improvements. His testimony (relevant to the issue but ruled out) pronounced the lot as of no residential value and fit only for the use to which it was being put. In the Supreme Court-adopted opinion of City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038, 1041, is stated: "While mere inconvenience and depreciation in value are not sufficient within themselves to constitute unreasonableness, yet it is settled that when depreciation in value is such as to make the property practically worthless for the designated use, this constitutes confiscation." Defendant's witnesses further testified that relative to his property, the ordinance in question bore no substantial relation to the health, safety, morals, or general welfare of the community; on the other hand, appellee offering no evidence of proper classification except such as must be inferred from existing conditions, i.e., the physical facts. Thus, in our opinion, the present record does not clearly negative the existence of an ultimate defensive issue, for disposition on final trial. An interlocutory injunction is a provisional and intermediate remedy, and ordinarily will not issue when its effect is to grant full and final relief; Sinclair Refining Co. v. City of Paris, Tex.Civ.App. 68 S.W.2d 230; 24 T.J., Sec. 132.

On above grounds, the writer concludes that the injunction heretofore granted should be dissolved and application therefor dismissed; and this concurrence in the original opinion of Associate Justice Looney is to that extent only.