City of Beaumont v. Marks

• Decision Date: 05 February 1969
• Docket Number: No. B--931,B--931
• Citation: 443 S.W.2d 253
• Parties: CITY OF BEAUMONT et al., Petitioners, v. A. B. MARKS, Respondent.
• Court: Texas Supreme Court

Page 253

443 S.W.2d 253

CITY OF BEAUMONT et al., Petitioners, v. A. B. MARKS, Respondent.

No. B--931.

Supreme Court of Texas.

Feb. 5, 1969.

Rehearing Denied April 30, 1969.

Anthony G. Brocato, Orgain, Bell & Tucker, John G. Tucker, Beaumont, for petitioners.

Weller, Wheelus & Green, Edward H. Green, Beaumont, for respondent.

SMITH, Justice.

The respondent, A. B. Marks, brought this suit in the District Court of Jefferson County, Texas, against the City of Beaumont, Texas, Southern Pacific Company, Missouri Pacific Lines and Kansas City Southern Railway Company, seeking compensation under Article I, § 17, of the Constitution of Texas, Vernon's Ann.St., ¹ for diminution in value to his leasehold interest in real estate. The landowner and a sub-lessee were not made parties. The respondent alleged that such diminution was due to impairment of reasonable access resulting from construction of a railroad grade separation project, which was begun December 31, 1963, and completed in the latter part of June, 1965. Trial was to a jury, which found the value of plaintiff's leasehold before and after construction. These findings resulted in a finding of damages in favor of the respondent against the petitioners for $46,000.00, the difference between such values. The trial court entered judgment accordingly. The Court of Civil Appeals affirmed. 427 S.W.2d 111.

For convenience, the petitioners, the Southern Pacific Company, Missouri Pacific Lines and the Kansas City Southern Railway Company, shall hereafter be referred to as the Railroads, and the petitioner, the City of Beaumont, shall be designated as the City. The respondent, A. B. Marks, shall be referred to as the Plaintiff. The Railroads and the City have filed separate applications for writ of error. Both applications present the primary question of whether or not the Plaintiff's access rights have been impaired to such an extent as to constitute damage to his property for public use under Article I, § 17, of the Texas Constitution. We have concluded that the courts below have correctly held that Plaintiff's access rights have been impaired to an extent which constitutes a damage to his property for public use under the Constitution; but for reasons hereinafter discussed, we find that errors were committed which require that the judgments below be reversed and the cause be remanded to the trial court for a new trial.

The construction of a railroad grade separation project by the Railroads under an agreement with the City set in motion the resulting deprivation of a reasonable access to Plaintiff's property. The term of Plaintiff's leasehold estate, including building and improvements does not expire until April 22, 2021 A.D. The leased property is situated on Lots 153 and 154 in Block 36 of the City of Beaumont, with a frontage of 120 feet on both Orleans and Gilbert Streets. Block 36 is bordered by Orleans Street on the west, Gilbert Street on the north, Pearl Street on the east and Milam Street on the south. The situation of Plaintiff's property before and after construction of the project is shown by Appendix 'A' and Appendix 'B', respectively, attached hereto. The lots involved are located in the northwest corner of Block 36. Before the project was begun this property fronted on Orleans Street, a one-way street running north, and Gilbert Street, a two-way street running east and west. A single railroad track ran along the middle of Gilbert Street. Both Orleans and Gilbert Streets were sixty (60) feet in width. At the time of the construction of the project, the Wholesale Automotive Supply Company was the sublessee of the Plaintiff's leased lots and occupied the building situated thereon. It is stated as a fact that this company moved from the premises in the latter part of 1964, but continued the payment of rent for the remaining fourteen (14) months of its lease contract. Since the completion of the project, there has been no tenant occupying or using Plaintiff's lots, except that in February, 1967, the sub-lessee (Wholesale Automotive Supply Company) was granted permission to use the property as a temporary warehouse facility without charge other than caring for the building situated thereon.

After completion of the project, which had as its main purpose the elimination of crossings of streets by railroad tracks at grade, many changes are noticeable. For example, two tracks are now located on Gilbert Street with a consequent higher grade, protected by a curb, so that Orleans Street traffic cannot cross Gilbert Street. Also, only a ten-foot wide traffic lane remains on Gilbert Street, between the new esplanade and the Plaintiff's property. Almost all north bound Orleans Street traffic now angles off to the left after crossing Milam Street, and proceeds under the underpass. In fact, the underpass is now considered part of Orleans Street. The 'Old' Orleans Street remains just as it was except for three material changes: (1) the entrance to the street just north of Milam is now only fourteen (14) feet wide instead of sixty (60) feet wide; (2) northbound traffic is now blocked by the new esplanade and must turn right onto Gilbert Street; and (3) there is evidence that the space left for making the right turn from Orleans Street onto Gilbert Street is so limited that large trucks cannot negotiate the turn.

It is well settled that abutting property owners, under proof such as presented here, have certain property rights in existing streets and highways in addition to their right in common with the general public to use them. Generally, the most important of these private rights is the access to and from the highway or street. State v. Meyer, 403 S.W.2d 366 (Tex.Sup.1966); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.Sup.1965) (viaduct); City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 219, 73 A.L.R.2d 640 (1958) (street); Powell v. Houston & T.C.R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A.,N.S., 1615 (1911) (street); Adams v. Grapotte, 69 S.W.2d 460 (Tex.Civ.App.1934), aff'd 130 Tex. 587, 111 S.W.2d 690 (1938) (sidewalk); Pennysavers Oil Co. v. State, 334 S.W.2d 546 (Tex.Civ.App.1960, writ ref'd) (limited-access highway). This right of access has been described as an easement appurtenant to the abutting land, which includes not merely the ability of the abutting landowner to enter and leave his premises by way of the street or highway but also the right to have the premises accessible to patrons, clients and customers. See 10 McQuillin, Municipal Corporations, 671 (3d ed. 1950); Clark, The Limited-Access Highway, 27 Wash.L.Rev. 111 (1952); Note 3, Standford L.Rev. 298 (1951).

In DuPuy, supra, although the facts ² were somewhat different from those presented here, this Court held that:

'It is the settled rule in this state that an abutting property owner possesses an easement of access which is a property right; that this enactment is not limited to a right of access to the system of public roads; and that diminishment in the value of property resulting from a loss of access constitutes damage.'

Also, in DuPuy, we said: right; that this easement is not limited District No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994 (1913), in which this Court held that if a public work is constructed which inflicts an injury peculiar to certain property not suffered in common with other property in the community or section, such property is damaged within the meaning of the Constitution, and the law will not permit the infliction of such injury without the allowance of just compensation.'

We think that the facts here establish a diminishment in the value of the property resulting from a loss of reasonable access. As the above testimony indicates, there have been three changes wrought by the construction of the project which, considered together, have effected this loss of reasonable access: (1) The space in which to make the turn from 'Old' Orleans Street onto Gilbert Street is so narrow that large trucks, presumably of clients, cannot negotiate the turn; (2) the remaining ten (10) foot lane (Gilbert Street) is so narrow that (a) a vehicle could not travel down the street if another vehicle chose to park there, and (b) a vehicle could not safely travel down the street if a train were on the south track; and ...