City of Dallas v. Burns

• Decision Date: 14 April 1923
• Docket Number: (No. 8993.)
• Citation: 250 S.W. 717
• Parties: CITY OF DALLAS et al. v. BURNS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

250 S.W. 717

CITY OF DALLAS et al. v. BURNS.^*

(No. 8993.)

Court of Civil Appeals of Texas. Dallas.

April 14, 1923.

Rehearing Denied May 12, 1923.

Appeal from District Court, Dallas County; Royal R. Watkins, Judge.

Suit by E. S. Burns against the City of Dallas and others, for mandamus and other relief. From a decree for plaintiff, defendants appeal. Affirmed.

J. J. Collins, Allen Charlton, and Hugh S. Grady, all of Dallas, for appellants.

Thomas, Frank, Milam & Touchstone, of Dallas, for appellee.

JONES, C. J.

Appellee, E. S. Burns, is the owner of a triangular shaped lot fronting on Greenville road and Henderson avenue in the city of Dallas, described as lot 15 in block 1486 of the city of Dallas, located in the residence section of the city of Dallas. He desired to erect on said lot a brick building, in conformity to the building code of the city of Dallas, to be used for the purpose of conducting either a retail grocery store or a retail drug store. Appellee made the usual application to the building inspector of the city of Dallas for the issuance of a permit for the construction of said building. Acting in conformity with the ordinance prescribing his duties under such conditions, the building inspector declined to issue a building permit, and the matter was referred to the mayor and city commissioners of the city of Dallas. A hearing was had by said commissioners, which hearing was attended by appellee and a number of the property owners and residents near said property, and especially those residing within a radius of 300 feet from where the building was to be constructed. After this hearing the commissioners denied to appellee a permit for the construction of said building. Appellee thereupon appealed to the board of appeals, authorized and created by ordinance, for the purpose of reviewing the action of the city commission in either granting or refusing permits for the erection of buildings. A hearing was also had before this board of appeals, which was attended by appellee and a number of said property owners in the vicinity of the proposed building. After this hearing the board of appeals again denied the right of appellee to have issued to him a permit for the erection of said building.

Thereupon appellee filed his petition in the district court of Dallas county, praying for the issuance of a writ of mandamus commanding the authorities of the city of Dallas to issue him said building permit to erect the building for said purposes, and further praying that the city of Dallas and certain named city officers be enjoined from interfering with, or molesting him in, the erection of said building on said premises. The city of Dallas, the mayor, the four commissioners, city attorney, building inspector of the city of Dallas, and the chief of police of the city of Dallas were each made parties and are each appellants herein. The cause was duly set for hearing, legal notice issued and, upon hearing, the court held that appellee was entitled to the relief prayed for, and entered the following decree:

"It is therefore ordered, adjudged, and decreed that the plaintiff, E. S. Burns, is entitled to erect a brick business building upon his property described as lot No. 15 of block 1496B, according to the official map of the city of Dallas, as prayed in his petition, the said E. S. Burns having agreed in open court that no part of the said building would be upon lot 14 of said block 1496B; and the defendants the city of Dallas, Sawnie Aldredge, mayor, and Louis Blaylock, Fred S. Appel, J. D. Rose, and Louis S. Turley, as board of commissioners, and D. C. McCord, as building inspector, of the city of Dallas, are hereby commanded and enjoined and immediately after the receipt of a copy of this order they shall issue to the plaintiff, E. S. Burns, a permit to erect a brick business building upon his said lot before described, in accord with plans and specifications to be filed by him with the said D. C. McCord, as building inspector of the city of Dallas, and due return shall be made by the said defendants within five days from this date showing how the order has been executed; and the said defendants the city of Dallas, Sawnie Aldredge, mayor, Louis Blaylock, Fred S. Appel, J. D. Rose, and Louis S. Turley, as board of commissioners, D. C. McCord, building inspector, J. J. Collins, as city attorney, and L. W. Brown, as chief of police, of the city of Dallas, their successors, representatives, agents, and attorneys, are hereby enjoined from in anywise preventing or interfering with the said plaintiff in the erection of his said building upon his said lot, before described, after the issuance of said permit, when the plaintiff shall have filed a...