Barrington v. City of Sherman

• Decision Date: 24 October 1941
• Docket Number: No. 13085.,13085.
• Citation: 155 S.W.2d 1008
• Parties: BARRINGTON v. CITY OF SHERMAN et al.
• Court: Texas Court of Appeals

155 S.W.2d 1008

BARRINGTON v. CITY OF SHERMAN et al.

No. 13085.

Court of Civil Appeals of Texas. Dallas.

October 24, 1941.

Rehearing Denied November 21, 1941.

Appeal from District Court, Grayson County; J. T. Suggs, Judge.

Suit by H. E. Barrington against the City of Sherman and others to have an amendment to a zoning ordinance as it related to the proposed use of plaintiff's property declared void and to enjoin city from interfering with construction of a building and for other relief. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

O. H. Woodrow, of Sherman, for appellant.

J. P. Cox, Jr., of Sherman, for appellees.

LOONEY, Justice.

The parties will be referred to as in the court below. The events leading to the controversy, in short, are these: About five years before the City of Sherman adopted its general zoning ordinance, H. E. Barrington, plaintiff herein, established and had maintained, on his residence lot, a public garage for the repair of automobiles, employed several mechanics, and built up a valuable local patronage; and, as an incident, stored automobiles being repaired on his premises. The increase of business required more room for the storage of cars, but after the adoption of the original ordinance, not being permitted by the city authorities to enlarge his garage business on his resident property (same being in a residential district), began the use of a vacant adjoining lot for the storage of cars. This aroused opposition from a group of citizens residing in the adjacent neighborhood, who were opposed to plaintiff's conducting a garage in the dwelling district, hence petitioned the city to require him to remove his business to a district where, under the zoning ordinance, it could be legally conducted. The opposition of citizens produced a controversy between plaintiff and the city authorities, that had persisted for about three years prior to the institution of this suit; the city insisting that plaintiff should remove his garage business to an area designated in the zoning ordinance as first manufacturing district, where he was permitted to conduct the same, while plaintiff insisted that he be permitted to retain his location; but, on September 1, 1939, after seeking unsuccessfully to secure a change of the ordinance, permitting him to maintain his garage business at that location, plaintiff purchased a lot in the first manufacturing district, valuable chiefly for business purposes (receiving deed therefor on September 9, 1939), where, under an express provision of the zoning ordinance, he was permitted to establish and conduct a garage business.

The record discloses that on September 6, 1939, a few days after plaintiff made the purchase, the same group of citizens who formerly protested against the maintenance of his business in the residential district, petitioned the governing body of the city to amend the zoning ordinance so as to change the character of the property newly acquired by plaintiff from a manufacturing to a residential district, and thus prohibit him from using his new location for the purpose for which he had purchased the same, that is, for the establishment and maintenance of a public garage business. The petition was, on same day, referred to the City Zoning Commission for recommendation and report, and, on same day, the latter body made its report, but failed to recommend that the petition be either granted or denied, simply that "the City Commission hold a hearing to determine the wishes of the property owners in the adjoining area who were affected." In the meantime, before the ordinance could be adopted, plaintiff, after receiving a deed to the property purchased, prepared to occupy same, moved a number of cars upon the lot, but was immediately arrested by a policeman of the city, and was also sued by the city in the District Court of Grayson County, seeking a mandatory injunction requiring him to immediately move his automobiles from both the old and new locations. On hearing, the court ordered plaintiff to cease the use of his original location, but permitted him to use the newly acquired property for business purposes. At this juncture, plaintiff applied for a building permit for the erection upon the newly acquired property of a fire-proof building, in which to house his garage business, which was refused by the City Building Inspector and, on appeal to the Board of Adjustment, the action of the Building Inspector was affirmed.

On October 9, 1939, after complying with prescribed procedure, the governing body of the city adopted an amendment to the original zoning ordinance, segregating a strip 305 feet in length (including plaintiff's new location) off the west end of what previously had been a business or manufacturing district, giving it the character of residential property. Whereupon, plaintiff filed this suit, seeking to have the amendment, as it related to the proposed use of his newly acquired property, declared void, that the city be required to issue to him a building permit for the erection of a fireproof garage on said lot, to conform to the building requirements of the city, and that it be enjoined from interfering with the construction of said building, etc.

A jury was impaneled to try the case, but after plaintiff introduced his evidence and rested, the defendant, without offering any evidence, moved for, and the court gave a peremptory instruction to the jury to find for the defendant; and judgment having been entered accordingly, plaintiff duly perfected and prosecutes this appeal; his contention being that, the case should be reversed and remanded because the court committed reversible error in taking the case from the jury and directing a verdict for the defendant, in that, the controlling issues were raised both by pleading and proof.

In moving for an instructed verdict, the defendant admitted every material fact that the evidence introduced by plaintiff tended to establish. See Blake v. Pure Oil Co., 128 Tex. 536, 100 S.W.2d 1009. So, in deciding the questions presented, it becomes our duty to disregard all adverse evidence or inferences, and consider alone the evidence and reasonable inferences from which a jury might have found in favor of the plaintiff. Many authorities could be cited in support of this doctrine; among others, see Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1; Dendy v. Cockerham, Tex.Civ.App., 82 S.W.2d 756; Southern Underwriters v. Willis, Tex.Civ. App., 110 S.W.2d 252, writ refused.

One of the contentions urged by plaintiff is that, by both pleading and proof, an issue was presented as to whether or not his newly acquired lot was part of a de facto business area at the time the governing body of the city amended the zoning ordinance, segregating it from the manufacturing district and zoning it as dwelling property; hence, that the action of the City Commission as to plaintiff and his property was arbitrary, unreasonable, discriminatory and oppressive.

Bearing upon this phase of the case, plaintiff alleged, in substance, that the area, including his recently acquired lot, was not desirable residential property, but, because of its location and environment, was a de facto manufacturing or business area, encircled and encompassed by railroad and interurban tracks; that a switch track runs through the area, connecting two railroads; contains a number of businesses, such as a filling station, shoe shop, beer joint, grocery store and others; also a shack occupied by a family of negroes; that the adoption of the amendment limiting its use to dwelling purposes only was an arbitrary exercise of the police power for no purpose other than to prevent plaintiff from using the lot for the business for which it had been purchased, and had no relation to the furtherance of any object or purpose justifying the amendment.

Without particularizing the evidence introduced, or commenting upon its probative value, we think it tended to establish the issue, as plead, which, in our opinion, should have been submitted to the jury.

The power to zone in this State is lodged with the legislative bodies of cities, and even if it should appear that a classification...