City of Austin v. Avenue Corp.

• Decision Date: 22 January 1986
• Docket Number: No. C-4019,C-4019
• Citation: City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex. 1986)
• Parties: The CITY OF AUSTIN, Petitioner, v. The AVENUE CORPORATION, Respondent.
• Court: Texas Supreme Court

Page 11

704 S.W.2d 11

The CITY OF AUSTIN, Petitioner, v.The AVENUE CORPORATION, Respondent.

No. C-4019.

Supreme Court of Texas.

Jan. 22, 1986.

Rehearing Denied March 5, 1986.

John F. Morehead, Mary A. Keeney, Daugherty, Kuperman, Golden & Morehead, Austin, for petitioner.

John N. McClish, Susan Vincent McClish, Roberts, Womack, Weldon & McClish, Austin, for respondent.

WALLACE, Justice.

This is an inverse condemnation case.The trial court found a material and substantial interference with the property owner's premises as a matter of law.A judgment was rendered for lost profits as found by the jury.The court of appeals affirmed the judgment of the trial court.685 S.W.2d 453.We reverse the judgment of the court of appeals and the trial court and render judgment for The City of Austin.

The City of Austin, pursuant to its police power, reconstructed the street and sidewalk in front of a restaurant operated by The Avenue Corporation.For approximately nine months, access to the restaurant was partially restricted due to the construction.It is undisputed that the construction was necessary and legally performed in a non-negligent manner.

The dispositive issue is whether a partial temporary restriction of access to a person's property by a governmental unit gives rise to inverse condemnation.Avenue's claim is founded on Article I, Section 17 of the Texas Constitution which provides in pertinent part:

No person's property shall be taken, damaged or destroyed or applied to public use without adequate compensation being made, unless by consent of such person; ...

Facts which constitute a taking, damaging or destroying have been considered by the courts of this state on a number of occasions.Those cases may be divided into three categories: (1) those in which there was a total restriction of access for either a temporary or a permanent period of time; (2) those in which there was a partial restriction of access for a temporary period of time; and (3) those in which the activity causing the restriction of access was illegal, unreasonable or unnecessary.

In Hart Brothers v. Dallas County, 279 S.W. 1111(Tex.Comm'n App.1926, judgment adopted)this court considered a fact situation where the county, in building an approach to a bridge, had totally restricted access to the Hart Brothers Wagon Yard for a considerable period of time.This court awarded damages for lost profits.The Hart Brothers' opinion cited American Construction Co. v. Caswell, 141 S.W. 1013(Tex.Civ.App.--Austin1911, writ ref'd).In Caswell, the court of appeals affirmed a jury verdict for lost profits.The jury failed to find that the obstruction which limited access to Caswell's store was reasonably necessary and that the obstruction did not leave the street in an unsafe or dangerous condition.

This court denied a claim for lost profits by a service station operator who alleged that he had lost business because of construction work on the highway in front of his business.City of LaGrange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243(1943).We held that the claim should have been included in the condemnation suit filed by the city to take part of the station premises for purposes of widening the highway.Avenue relies on language in Pieratt stating that a claim for lost profits would have been proper even though there was no contention that...