Gilliland v. City of Fort Worth , 162 S.W.2d 1000 ( 1942 )

I find myself unable to concur in the opinion of the majority of the court.

The nature of the suit is indicated by the following excerpt taken from appellants' brief: "The purpose of the suit was to establish and enforce the right of the plaintiffs, as the owners of homes abutting on Hemphill Street in said city, to have the driveway for vehicular traffic on that part of Hemphill Street kept and confined to its then width of approximately 40 feet, leaving the remainder of the original dedicated street to be used only for parkways, sidewalks and driveins."

Although the petition does not say so in so many words, I think that it unmistakably alleges in effect that Hemphill Street, as originally dedicated, was 80 feet in width from the property lines on one side to those on the other.

Ten points are relied upon by appellants for reversal of the judgment of the trial court.

First point: Appellants filed affidavits seeking a change of venue. The trial court announced that he would pass upon the exceptions to the petition before acting upon the motion for change of venue. If the trial court was in error in passing upon the exceptions before acting upon the motion for change of venue, the error was harmless, for the reason that it would have availed plaintiffs nothing to obtain a change of venue if their petition stated no cause of action. Any court to which the case might be transferred would have to have made the same ruling as did the trial court. The reasoning in the opinion in Carpenter v. Kone,54 Tex. Civ. App. 264, 118 S.W. 203, writ of error refused, is applicable here.

Second, fourth, fifth, sixth, and ninth points: Under these points it is argued, in effect, that plaintiffs' petition states a cause of action.

As it appears to me, the case alleged is that plaintiffs, severally, own homes along Hemphill Street. The street, according to the original dedication, is 80 feet in width, from property line to property line. In 1902 the city passed an ordinance, providing that curbs should be set 20 feet from the property lines, leaving a space for vehicular traffic 40 feet in width. In 1904 another city ordinance was passed, providing that the driveway for vehicular traffic should be 45 feet in width. Under said ordinances the abutting property owners were commanded to construct sidewalks between their property lines and the curb, to set curbs, to fill in the space between the sidewalk and curb with suitable material, and to set the space in grass and to plant same with ornamental trees and shrubs. The plaintiffs and other property owners along the street have complied with the terms of the ordinances by setting the curbs, planting the trees, etc., and have thereby added materially to the beautification of the city and of their own individual properties. The City of Fort Worth, and the State of Texas through its Highway Commission, now threaten to widen the traveled portion of the street to a width of 54 feet, in the course of which work plaintiffs' trees and shrubs will be destroyed, their curbs removed, and their parkways and driveins damaged. It is alleged that the legal result of the passage of the two ordinances, and of the interpretation placed thereupon by the city officials and the public, including the plaintiffs, is that the public has an easement of only 40 or 45 feet in the street for vehicular traffic, and that the remainder of the street is now subject only to an easement for use as a parkway, and for sidewalks and driveins. In short, the claim asserted is that the city cannot now widen the traveled portion of the street.

Plaintiffs, who are appellants here, cite no authorities which support their claim that the city cannot lawfully widen the traveled portion of the street. All the decisions which have come to my attention are to the contrary. I find no facts alleged in the petition which are sufficient to prevent the city from exercising its dominion and control over the streets by moving the curbs in the street so that the portion of this 80 foot street devoted to vehicular traffic shall be 54 instead of only 40 feet wide. We do not have a case where the city is widening the street beyond its dedicated width. All of the cases which have come to my notice hold that the authority lies with the city to determine what portion of the street shall be devoted to vehicular traffic, and what portion shall be reserved for sidewalks or parkways. The fact that the city at some time orders only a certain portion of the street to be used for vehicular traffic does not defeat its right to widen the traveled portion at a later time if traffic conditions require it. And it is for the officials of the city, and not for the courts, to determine the question of traffic needs in such a case. If the property owners plant trees within the limits of the dedicated portion of the street, they may be removed if conditions require the widening of the traveled portion of the street. I consider that the following authorities support the views just expressed. 44 C.J. 167; 13 R.C.L. 203; 39 Tex.Jur. 513; Strauss v. City of Dallas, 73 Tex. 649, 11 S.W. 872; Jones v. City of Houston, Tex. Civ. App. 188 S.W. 688; City of Georgetown v. Hambrick, 127 Ky. 43, 104 S.W. 907, 13 L.R.A., N.S., 1113, 128 Am. St. Rep. 333; Bekkedahl v. Village of Westby, 140 Wis. 230, 122 N.W. 727; Louis Rabiner v. Humboldt County,224 Iowa 1190, 278 N.W. 612, 116 A.L.R. 89, and annotation beginning at page 95, of volume 116 of A.L.R.; City of Marshall v. Allen, Tex. Civ. App. 115 S.W. 849, writ of error refused; Gillespie v. Fuller Construction Co., Tex.Civ.App. 66 S.W.2d 798, writ of error refused.

Art. 1175, Sect. 16, granting enumerated powers to home-rule cities provides that they shall have exclusive dominion and control over streets, with power to compel property owners to put in curbs, and Sect. 17 empowers the cities to widen any public street. It is doubtful if the city could by ordinance take any action which would later cut off its right to change the curb lines within the street. See Bowers v. City of Taylor, Tex.Com.App., 16 S.W.2d 520; J. M. Radford Groc. Co. v. City of Abilene, Tex.Com.App., 34 S.W.2d 830; and also the cases cited above in this opinion.

This suit was filed late in August, 1941. Defendants' answers were filed after September 1st, the effective date of the new rules of procedure, and all other proceedings had in the case were after that date. Plaintiffs argue that, under the new rules of procedure, the exceptions filed by defendants have the effect of admitting the correctness of the legal conclusions appearing in plaintiffs' petition.

It was well settled under the old rules that a general demurrer did not admit the truth of mere conclusions in the petition. Pleadings of conclusions could not take the place of allegations of facts, and did not aid the petition as against a general demurrer. 33 Tex.Jur. 557.

Rule 45 of the new rules of procedure provides that pleadings shall consist of "a statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of defense". That same rule also provides that it shall not be ground for objection that an allegation be evidentiary or be of legal conclusion when fair notice be given by the allegations as a whole. Rule 47, taken from the Federal Rules, provides that a pleading which contains a claim for relief shall contain a short statement of the cause of action sufficient to give fair notice of the claim involved.

Despite plaintiffs' contentions, it seems to me that the sufficiency of the petition must be tested, not by Rule 45, but by Rule 682, as amended by order of March 31, 1941, which reads as follows: "No writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief."

The language of this rule is identical with that of Art. 4647 of the Revised Statutes. The decisions construing Art. 4647 are therefore in point.

In 24 Tex.Jur. 221-233 will be found statements of the tests applicable to petitions in injunction suits. All the necessary facts must be averred. The rule that as against a general demurrer every intendment is indulged in favor of the sufficiency of the pleading does not apply to injunction suits. Instead, as is said in Johnson v. Ferguson, Tex.Civ.App.55 S.W.2d 153, 159, cited infra, in the injunction suits the rule is that "the averments of material and essential elements must be sufficiently certain to negative every inference of the existence of facts under which petitioner would not be entitled to relief". It might be said, in short, that in the ordinary suit the pleading, as against a demurrer, must be construed most favorably to the pleader, while in injunction suits the opposite is the rule.

Plaintiffs allege, in effect, that the improvement of Hemphill Street is unnecessary, and that a more feasible and a more economical plan of meeting the traffic needs may be found in improving certain other streets. Such allegations are not, in my opinion, sufficient to entitle plaintiffs to the injunctive relief sought. City of Marshall v. Allen, Tex.Civ.App. 115 S.W. 849, writ of error refused; Johnson v. Ferguson, Tex.Civ.App. 55 S.W.2d 153, writ of error dismissed; Grayson County v. Harrell, Tex.Civ.App. 202 S.W. 160, writ of error refused; City of San Antonio v. Fetzer, Tex.Civ.App. 241 S.W. 1034, writ of error refused.

Seventh and eighth points: Plaintiffs urge that although the plan includes an agreement by the city that it will pay the damages accruing to the abutting owners, that such an agreement is in violation of constitutional inhibitions, and that the property owners therefore have no adequate remedy at law to relieve them of their damages.

Art. 11, Sect. 5, of the Constitution of Texas, Vernon's Ann.St., provides in part that no city shall ever create a debt unless at the time provision be made to assess and collect annually a sum sufficient to pay the interest on the debt and to create a sinking fund for its payment. The damages so caused would not, in my opinion, constitute a debt within the meaning of the constitutional provision. Reference is made to City of Dallas v. Miller, Tex.Civ.App. 7 Tex. Civ. App. 503, 27 S.W. 498; West Audit Co. v. Yoakum County, Tex.Com.App., 35 S.W.2d 404; City of Marshall v. Allen, supra.

Third point: Plaintiffs complain of the refusal of the trial court to permit them to further amend their petition. It appears that the trial court, shortly after the original petition was filed, held a pretrial conference with the attorneys representing all parties. At that conference numerous exceptions to the petition were presented by the defendants. The trial court indicated that the petition failed to state a cause of action, and gave plaintiffs a limited time to amend. Plaintiffs amended their petition, after which a second pre-trial conference was held. The trial court expressed the view that the amended petition did not state a cause of action, refused to allow the plaintiffs to amend further, and dismissed the suit.

Although the question is not raised by a specific point, certain argument in appellants' brief appears to complain of the action of the trial court in ruling upon the exceptions at the pre-trial conference, rather than upon a formal trial of the case. My view regarding this is the same as my view regarding the ruling made upon the exceptions before passing upon the venue matter. The error, if there was one, was harmless. If the petition failed to state a cause of action, the suit would have been dismissed whenever the court acted upon it.

To complain of the refusal of leave to amend the petition, appellants must show an abuse of discretion upon the part of the trial court. They must show that the amendment might have been of aid to them. So far as the record shows, they did not apprise the trial court of what additional facts they desired to allege, nor do they say here what else they would have alleged. The presumption is, until the contrary be shown, that the trial court ruled correctly. See 33 Tex.Jur. 511, for statement of the rule. Although no mention is made of it in their brief, counsel for appellants suggested in oral argument before us that, if allowed another trial, they would seek to recover damages in the event they failed to obtain the injunctive relief sought. Nothing has happened in the present suit which would cut them off from seeking damages in another suit. A suit for injunction is brought before the damage is done, in order to prevent the damage. A suit for damages is usually brought after the damage is done. The question of right to recover damages is not before this court upon this appeal, hence no opinion upon that question is now necessary or proper.

Tenth point: Appellants make no statement or argument upon this point, and cite no authority to support it. To my mind it is obviously without merit.

As I see it, the case is a simple one. The abutting property owners had the right, and within certain limits could lawfully be required, to place improvements in that portion of the street lying between their property line and the curb. But the right remained with the city to require the removal of the improvements if, in the lawful exercise of its discretion, it should determine that more of the street was required for the use of vehicular traffic. I venture no opinion upon the question of whether damages may be recovered by the property owners.

In my opinion the judgment of the trial court should be affirmed.