City of Austin v. Avenue Corp.

Decision Date22 January 1986
Docket NumberNo. C-4019,C-4019
Citation704 S.W.2d 11
PartiesThe CITY OF AUSTIN, Petitioner, v. The AVENUE CORPORATION, Respondent.
CourtTexas Supreme Court

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.--Austin 1911, 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...

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  • Jim Olive Photography v. Univ. of Hous. Sys.
    • United States
    • Texas Supreme Court
    • June 18, 2021
    ...damage"); see also State v. Heal , 917 S.W.2d 6, 9–10 (Tex. 1996) (applying DuPuy to residential property); City of Austin v. Ave. Corp. , 704 S.W.2d 11, 13 (Tex. 1986) (recognizing that both partial and temporary restrictions of access may be compensable); City of Waco v. Texland Corp. , 4......
  • Westgate, Ltd. v. State
    • United States
    • Texas Supreme Court
    • December 2, 1992
    ...delay in this case would be consistent with the approach taken in cases involving restrictions of access. See City of Austin v. Avenue Corp., 704 S.W.2d 11, 13 (Tex.1986) (recovery permissible for temporary restriction that is negligently performed or unduly delayed). In either situation, t......
  • State v. Schmidt
    • United States
    • Texas Court of Appeals
    • February 13, 1991
    ...that his incorporeal property has in fact been taken, damaged, destroyed, or appropriated for public use. See, e.g., City of Austin v. Avenue Corp., 704 S.W.2d 11 (Tex.1986) (right of "access" to public streets). To establish his legal right to compensation, however, the owner must first es......
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    ...profits demonstrate the effect on the market value of the remaining land and improvements. See id. at 871 (citing City of Austin v. The Ave. Corp., 704 S.W.2d 11, 13 (Tex.1986) and City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, 179 (1951)). This case falls into the second category,......
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