Burrow v. Davis, No. 5945

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: PITTS
• Citation: 226 S.W.2d 199
• Decision Date: 21 November 1949
• Docket Number: No. 5945
• Parties: BURROW et al. v. DAVIS et al.

Page 199

226 S.W.2d 199 BURROW et al.
v.
DAVIS et al. No. 5945. Court of Civil Appeals of Texas, Amarillo. Nov. 21, 1949.
Rehearing Denied Jan. 9, 1950.

Hazlewood & Richards, Amarillo, for appellants.

E. T. Miller and Simpson, Clayton & Fullingim, Amarillo, J. D. Barker, Canyon, for appellees.

PITTS, Chief Justice.

Appellants, C. R. Burrow, Ray Cole, Glen McGahey and J. Redmond Hand, filed suit against appellees, I. Clyde Davis and wife Maxine Davis, John L Hammond and wife Florence Hammond, and the City of Canyon, Texas, a municipal corporation, seeking the cancellation of a deed and a prohibitory and mandatory injunction to restrain appellees perpetually from proceeding further with the construction of a tourist court that encroached upon two public streets in the City of Canyon and to require said appellees to remove from the said streets that part of the said tourist court building then already partly constructed upon the said streets. Appellants sued as property owners abutting the streets in question and appellees defended upon the grounds that they were protected under the rules of law and equity governing such matters.

The case was tried to a jury which found that the streets in question still had width enough to provide adequate space for use by the public; that appellants sustained no special damages by reason of the erection of the tourist court as alleged and that such construction of the tourist court did not create a traffic hazard. Judgment was rendered upon the jury verdict denying the relief sought by appellants who have perfected their appeal.

We shall dispose of appellants' assignments of error in the order that seems most logical to us. Appellants contend that they were entitled to a peremptory instruction of the jury and that since such was not given they were then entitled to have judgment for the relief sought notwithstanding the jury verdict. They further contend that they were entitled to such because the evidence established conclusively that the tourist court extended into Third Avenue and 22nd Street and that they had previously purchased their land abutting the said Avenue and Street, across such from the land upon which the tourist court was being constructed, and that they purchased their said land according to recorded plats which clearly showed a dedication of Third Avenue 80 feet wide and 22nd Street 60 feet wide. They further contend that they examined and relied upon the said plats before buying their land adjacent to the said Avenue and Street and that the width of the said Avenue and Street constituted a part of the consideration that induced them to purchase the land abutting such Avenue and Street. They complain that appellees, Davis and Hammond, with the approval and sanction of appellee, the City of Canyon, have partially constructed their tourist court so as to encroach upon Third Avenue 9 1/2 feet and so as to encroach upon 22nd Street 2 1/2 feet, thus denying appellants the benefit of the full width of the said Avenue and Street as dedicated, to their special damages in the premises.

Appellees resist appellants' contentions and complaints and claim they have acted within their legal and equitable rights. Appellee, City of Canyon, filed a separate answer in the case, alleging, in effect, that the said City had acted for the best interest of the public without damaging appellants' property or encroaching upon their rights in the matter. They further pleaded that the small strips only slight in width were parts of parkways located on a part of the dedicated Avenue and Street and that such strips of land had never been appropriated and used for vehicular use and that the remainder of the said Avenue and Street was amply sufficient for all public purposes.

Page 202

They further pleaded that: '* * * said alleged encroachment, if any there be, is of so slight a nature that it is not worthy of notice by the law, and that under the principal of law, 'De Minimis Non Curat Lex' (The Law does not concern itself with trifles) the equitable relief sought should not be granted.'

The record reveals that appellees Davis and Hammond own four lots contiguous to each other located in block 3, W. W. Thompson Addition to the City of Canyon, on which they have constructed the tourist court in question. Their said lots are adjacent to 23rd Street on the east, along which runs U. S. Highway No. 87. They are adjacent to Third Avenue on the north and 22nd Street on the west. Third Avenue was dedicated 80 feet wide but only 30 feet of it is paved down the center of the street, leaving 25 feet on each side of the said pavement for a parkway between the paved part of the street and the property on each side of the said Avenue. 22nd Street likewise has pavement in the center thereof 30 feet wide, leaving a parkway 11 1/2 feet wide on the east side and 18 1/2 feet wide on the west side thereof. On July 16, 1946, appellants Cole and McGahey purchased and have since owned a part of lot 4 and all of lots 5 and 6, block 10, Gilvin and Brymer College Park Addition to the City of Canyon. These lots are contiguous to each other and are located north of appellees' land across Third Avenue and adjacent thereto and they are likewise adjacent to 23rd Street or U. S. Highway 87 on the east. Being on the corner of Third Avenue and 23rd Street or U. S. Highway 87, appellants Cole and McGahey have built and are operating a filling station located on their said property and were servicing all kinds of motor vehicles but particularly trucks prior to and subsequent to the construction of the tourist court. Appellant Hand owns lots 10, 11 and 12, block 2, W. W. Thompson Addition to the City of Canyon. These lots are contiguous to each other and are located across 22nd Street from appellees' land and adjacent to the said Street. The record reveals that appellant Burrow did not own any land abutting Third Avenue and 22nd Street in this particular area at the time of the trial and therefore suffered no special damages by reason of the construction of the tourist court. U. S. Highway running north and south through the City of Canyon and being a busy thoroughfare, needed additional right of way and it became necessary for the City Commission of Canyon to provide such additional right of way adjacent to the said appellees' land in order to widen the said Highway. The said City, acting through its City Commission and in accordance with a resolution duty passed, conveyed to the other appellees 9 1/2 feet off of the south side of Third Avenue adjacent to appellees' said land and along the north boundary of the same for a distance of 152 1/2 feet, together with 2 1/2 feet off of the east side of 22nd Street next to appellees' said land and along the west boundary of the same for a distance of 149 1/2 feet in exchange for 15 1/2 feet deeded to the said City by the other appellees off of the east side of their said tract of land for a distance of 140 feet to be used for right of way purposes for widening U. S. Highway No. 87. The deed executed by the City Commission recites that it is an exchange deed of conveyance without covenants of warranty of title. Appellees take the position and have pleaded that the said deed granted the said appellees nothing more than the permanent right to occupy and use the said land described therein and does not convey fee title to the said land. Appellees Davis and Hammond began the construction of their tourist court on their said lots using brick on a concrete foundation and extending the same over on the said strips of land...