Alexander v. Singleton

• Decision Date: 14 May 1932
• Docket Number: No. 11284.,11284.
• Citation: 50 S.W.2d 893
• Parties: ALEXANDER et al. v. SINGLETON et al.
• Court: Texas Court of Appeals

50 S.W.2d 893

ALEXANDER et al. v. SINGLETON et al.

No. 11284.

Court of Civil Appeals of Texas. Dallas.

May 14, 1932.

Rehearing Denied June 11, 1932.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit for an injunction by Vernon Singleton and others against F. H. Alexander and others. From an order granting a temporary injunction, defendants appeal.

Order reversed, and injunction dissolved.

Tom C. Clark and Guy L. Mann, both of Dallas, for appellants.

John W. Pope and Grady Niblo, both of Dallas, for appellees.

Burgess, Burgess, Chrestman & Brundidge and O. D. Brundidge, all of Dallas, amici curiæ.

JONES, C. J.

Appellees, Vernon Singleton and ten others, instituted this suit against the commissioners' court of Dallas county, composed of F. H. Alexander, county judge, and the four precinct commissioners of Dallas county, to restrain them from entering into a contract with the state highway commission in reference to the construction of what is termed the "alternate route" of highway No. 1 (Fort Worth-Dallas pike); such new construction to leave the present route of said highway near the crossing of Westmourland road and to run in a somewhat northeasterly direction to Commerce street bridge, a distance of 3.85 miles. On presentation of the duly verified petition, the court granted a temporary injunction without notice or hearing to appellants. Appellants at once perfected an appeal to this court, and the alleged and duly verified facts of the petition become the statement of facts. These facts are as follows:

For several years, highway No. 1 has entered the city of Dallas on Davis street and has followed such street to Zangs boulevard into the city of Dallas by way of the Oak Cliff viaduct. What is termed the "alternate route" leaves highway No. 1 some distance west of the western limits of the city, near where Westmourland road crosses Davis street, and extends through an entirely different territory.

Approximately twelve years previous to the filing of this suit, Davis street was a narrow unpaved street, or alley, in the Oak Cliff portion of the city of Dallas. It was designated as the route of state highway No. 1, on the condition that it would be widened and paved, which condition was fulfilled. Appellees, and all other owners of real estate abutting on Davis street, have a property interest in maintaining the route of highway No. 1 at its present location. The promise was made by a member of the state highway commission, at the time of the designation of the route on Davis street, that such street would continue to be the route of highway No. 1, and, relying on such promise, the property owners on said street gave valuable property for the necessary widening of the street and have since invested large sums of money in improvements on said street in the erection of business houses, and other improvements. Their claim is, if the present intention of the state highway commission is carried out, in reference to the designation of an alternate route into the city of Dallas and its immediate completion, they will suffer damages to an extent of $1,000,000. However, as we understand the petition, the suit is not predicated on the promise made at the time Davis street was designated as the route of highway No. 1, nor is it predicated on any bad faith or violated promise of the state highway commission, for such commission is not made a party to this suit; such allegations are made in order to give the historic background and accentuate the wrongs that are now threatened them, and about which they complain in this suit. The suit is predicated on alleged violations by appellants of certain orders made by appellants in respect to the contemplated improvement of this highway.

On January 12, 1931, appellants, sitting as the commissioners' court of Dallas county, passed the following resolution:

"Whereas the State Highway Department is now engaged in the widening and improving of State Highway No. 1 in Tarrant County from the City of Fort Worth to the Dallas County line with a 100 foot right of way and 36 feet of pavement; and,

"Whereas the State Highway Department has signified its intention of also widening and improving said State Highway No. 1 in Dallas County from the Tarrant County line to the corporate limits of the City of Dallas,

"Now, therefore, be it resolved by the County Commissioners' Court of the County of Dallas, in regular meeting of said Commissioners' Court, on this, the 12th day of January, A. D., 1931, as follows:

"We, the Commissioners Court of the County of Dallas, hereby go on record as favoring the widening and improving of State Highway No. 1 along its present designated route entering and over Davis Street."

This order is signed by the county judge and each commissioner in his official capacity, and is placed on the minutes of the commissioners' court of the county of Dallas.

A resolution was passed on March 3, 1931, by the state highway commission in which such commission obligated itself to widen, construct, and pave highway No. 1 from the Tarrant county line up to and over Davis street, conditioned that the city of Dallas should widen Davis street to meet the requirements of the highway commission; and, in pursuance of this resolution by the highway commission, appellees, and other citizens of Dallas similarly situated, proceeded to and did carry out the requirement to widen Davis street, at a cost in excess of $60,000. The order of March 3d is not set out verbatim in appellees' petition, but only in substance.

After there was shown a willingness to comply with the request of the state highway commission, in respect to paving and widening of Davis street, the highway commission on September 21, 1931, amended its former order, as follows: "That if Dallas County will furnish not less than one hundred feet right-of-way from a point on State Highway No. 1 near Westmourland Road to the Commerce Street bridge on location made by the State Highway Department, that the State Highway Department will construct Unit No. 1, with the understanding that when Unit No. 2 is constructed, Dallas County will reimburse the Department for its portion of both Unit No. 1 and Unit No. 2. The State Highway Engineer is instructed to advise Dallas County of this action, and to ask for official action of the County confirming this arrangement. This action, however, is not to be taken in any manner as affecting the present route of Highway No. 1 through Oak Cliff."

On October 22, 1931, appellants, sitting as the commissioners' court of Dallas county, entered the following order:

"October 22, 1931, be it remembered, that on this the 22nd day of October, 1931, came on to be considered the following orders and proposals of the State Highway Department. The order of October 19, 1931, is as follows: `In Dallas, The State Highway Engineer is authorized to advertise for bids for the construction of grading and drainage structures on State Highway No. 1 from Rosemont Street to the Tarrant County line on condition that Dallas County will secure not less than one hundred feet of right-of-way on Highway No. 1, and in addition thereto not less than one hundred feet of right-of-way on what is known as the alternate route, beginning in the neighborhood of Westmourland Street and running to the Commerce Street viaduct'—Minute 4984.

"Also an order passed by the State Highway Department on September 21, 1931, as follows:

"`That if Dallas County will furnish not less than one hundred feet of right-of-way from a point on State Highway No. 1 near Westmourland Road to the Commerce Street bridge on location made by the State Highway Department, that the State Highway Department will construct Unit No. 1, with the understanding that when Unit No. 2 is constructed, Dallas County will re-imburse the Department for its portion of both Unit No. 1 and Unit No. 2. The State Highway Engineer is instructed to advise Dallas County of this action, and to ask for official action of the County confirming this arrangement. This action, however, is not to be taken in any manner as affecting the Present route of Highway No. 1 through Oak Cliff.'

"After careful consideration of the above orders of the State Highway Department, it is the opinion of the Commissioners Court that the same should be approved.

"It is, therefore, ordered, adjudged and decreed by the Commissioners Court that the above proposals and orders of the State Highway Department be accepted and approved.

"It is further ordered by the court, that we join with Highway Committee of the Dallas Chamber of Commerce and the Oak Cliff-Dallas Commercial Association requesting the State Highway Commission to delay the beginning of work on Unit No. 1, of what is known as the alternate route from Highway No. 1 to the Commerce Street bridge until Unit No. 1 on the Davis Street route from Rosemont street to the Tarrant County line has been completed."

On April 4, 1932, the state highway department received bids for the grading and drainage of the alternate route beginning at the west end of the Commerce street bridge in the city and county of Dallas, and running in a southwesterly direction, a distance of 3.81 miles and connecting with the present route of highway No. 1 at a point approximately 2,000 feet west of where the Westmourland road crosses such highway, and on said date awarded a conditional contract in the sum of $42,010 for the grading and drainage of this highway, the condition being that appellants, as the commissioners' court of Dallas county, will furnish the right of way for such alternate route and pay all charges therefor, and remove all obstructions therefrom.

It is alleged that appellants, as the commissioners' court of Dallas county, will accept the conditions named and will enter into a contract with the highway commission to secure the right of way necessary for the construction of the alternate route of highway No. 1, though it had...