City of Dallas v. Rosenthal

• Decision Date: 13 April 1951
• Docket Number: No. 14320,14320
• Citation: 239 S.W.2d 636
• Parties: CITY OF DALLAS et al. v. ROSENTHAL.
• Court: Texas Court of Appeals

Page 636

239 S.W.2d 636

CITY OF DALLAS et al. v. ROSENTHAL.

No. 14320.

Court of Civil Appeals of Texas, Dallas.

April 13, 1951.

Rehearing Denied May 11, 1951.

H. P. Kucera, City Atty., and H. Louis Nichols, Asst. City Atty., W. R. Hemphill, all of Dallas, for appellants.

Storey, Sanders, Sherrill & Armstrong, Dallas, for appellee.

YOUNG, Justice.

This is a second appeal; on first appeal the dissent of Associate Justice Looney becoming, on rehearing, the majority opinion of this Court. The cause was there 'reversed and remanded to the trial court for further proceedings,' Judge Looney having set forth and discussed the various error on which reversal was based. On application for writ of error to the Supreme Court by the City and residents of the neighborhood (interveners), the writ was refused, 'no reversible error.' See Tex.Civ.App., 211 S.W.2d 279 for factual background of the present controversy and conclusions reached by the majority, necessitating another trial.

Appellants (City and interveners) have again, on this trial, sought injunction against appellee Rosenthal (sometimes referred to as defendant), charging that his business as conducted at 3307 Lemmon Avenue, Dallas, constituted a public and private nuisance, also that maintenance of same at said location was in violation of existing zoning laws; defendant answering by general denial, assertion of vested rights in the property and operation of business at a location designated as nonconforming use in an apartment district and reliance on valid permits from office of City Building Inspector for a substantial investment of money. On basis of jury answers to 84 special issues, the City and interveners were denied all relief by way of injunction; defendant, on the other hand, being granted an injunction permanently restraining appellants from interfering with or molesting him in the operation of his business on the premises in question as presently carried on, except the smoking of meats, and from interfering with his completion of the garage building on the premises and use of the garage after completion. From such judgment final, the City of Dallas has seasonably taken an appeal along with two of the original 26 adjacent and intervening property owners.

Naturally the conduct of this, a second trial of the cause, both in pleading and procedure was patterned upon the findings and conclusions of the majority in its previously cited opinion of reversal and remand; and the errors which this Court has held were committed on the former trial should be detailed prior to an analysis of the jury issues and answers on which the present judgment was based.

In the opinion of Judge Looney, the following errors were apparent in the record, generally by way of court rulings and character of judgment rendered on said former trial: (1) That the noncomforming use in an apartment house district had not been abandoned by Rosenthal's predecessor in title and was in existence at time of the latter's purchase of property at 3307 Lemmon (Lots 11, 12, and 13); such nonconforming use extending to and including the Lots (10, 14, 15, and 16) upon which defendant Rosenthal was building a garage when the stop order was served upon him (2) defendant had not subjected the property in question to a new and substantially different use, the 'evidence' showing that Rosenthal had continued a use of the property for 'cold storage and its accessory purposes' as that term had been construed and administered by the officials of the City of Dallas; (3) that the City permit to Rosenthal of August 1944, through its Assistant City Building Inspector, "for the erection, remodeling, repairing and demolition of buildings, or parts thereof, as provided in the Dallas Building Ordinance' for the operation at the same place of a cold storage plant, including meat storage and curing, was authorized and valid; and not having been appealed from by the City authorities or interested citizens, cannot now be collaterally attacked'; (4) any infraction of regulations incident to defendant's failure to obtain additional permit for extra expenditures involved in erection and alteration of buildings, also for failure to obtain a certificate of occupancy ('a mere ministerial act') after completion of the remodeling and alterations, was waived by the City authorities 'who from time to time inspected the buildings as the work progressed'; being further estopped from complaining of Rosenthal's failure to obtain additional permit and certificate of occupancy; (5) the City was fully cognizant of all the facts prior to issuance of permit which it later asserted as grounds for injunctive relief; and defendant, after 18 months and incurrence of heavy expenditures in reliance on permit, had acquired vested rights, and the City's later action in revocation of permit was arbitrary and unreasonable; (6) that on said first trial the court erred in refusing certain defensive issues (appearing in the instant court's charge as Issues 62, 68, 71, 72, and 73); (7) in the record on first appeal, the majority found no evidence of fraud or deception practiced by defendant in obtaining of building permits.

The jury issues and answers are lengthy but must be presented at least in substance. By way of clarification, such answers are shown by divisions and according to germane subject matter, with emphasis on material wording (number of issue being given at beginning of each paraphrased answer):

NUISANCE.

Odors: (1) The operation of defendant's plant created odors; (2) which spread to neighboring properties; (3) which are offensive and obnoxious; (4) which substantially impaired the reasonable use and enjoyment of the residential properties near said plant by the occupants thereof; (5) the odors do not materially interfere with the reasonable use and occupancy as a home of the residential property in the near vicinity of said plant by persons of ordinary habits and ordinary tastes and sensibilities; (62) odors can be detected by persons of ordinary sensibilities on the outside of defendant's plant and beyond the boundary of his property; (63) such odors are not injurious to the health or property of the interveners.

Odors, Noise and Smoke: (6) The operation of defendant's plant created noises; (7) such noises are audible at the homes in the vicinity of said plant; (9) such noises do not materially interfere with the reasonable use and occupancy as a home of the residential property in the near vicinity of the plant by persons of ordinary habits and ordinary tastes and sensibilities; (10) such noises do not materially interfere with the reasonable use and occupancy of the residential properties near the plant by the occupants thereof; (14) the odors and noises considered together do not materially interfere with the reasonable use and occupancy as a home of the residential property in the vicinity of the plant by persons of ordinary habits and ordinary tastes and sensibilities; (15) the odors and noises taken together do not substantially impair the reasonable use and enjoyment of the residential properties in the near vicinity of the plant by the occupants of said residential properties; (64) the odors, noise and smoke from defendant's plant were more than the odors, noise and smoke resulting from the operation of the previous ice manufacturing business; (65) the odors, smoke and noise from the operation of the M. K. T. Railroad were less offensive than those from defendant's plant; (66) the noise, odors and smoke from the operation of defendant's plant were not injurious to the property of the people residing in the immediate neighborhood of defendant's place of business; (67) the noise, odors and smoke were the result of natural uses of the property, industries and railroad in the neighborhood involved; (83) the noise and traffic congestion, exclusive of that caused by defendant, on Lemmon Avenue in front of defendant's plant are more than those resulting from the operation of defendant's plant.

Nonconforming Use: (16) The owners of Lots 11, 12, and 13 did not abandon the nonconforming use to manufacture ice thereon prior to the time defendant purchased the property; (17) the prior owners of Lots 10, 14, 15, and 16 did not abandon the nonconforming use to manufacture ice thereon prior to defendant's purchase of such property; (69) defendant's predecessor in title contemplated and intended to operate and make use of all the lots now owned by defendant here involved as a whole for ice manufacturing continuously until the sale to defendant; (70) defendant's predecessor in title did use the property involved for ice manufacturing, cold storage business or other business purposes until the sale to defendant in August 1944; (81) defendant has been and is now using Lots 10, 14, 15, and 16 since purchasing same for necessary parking, driveways, and storage purposes of his business.

Cold Storage: (19) Defendant is not primarily engaged in the operation of a cold storage plant; (44) at the time defendant purchased Lots 11, 12 and 13, he did intend to use said lots primarily for the operation of a cold storage plant; (80) defendant's plant has been continuously operated substantially the same as other similar cold storage plants including meat storage and curing in the City of Dallas, Texas; (26) defendant represented to plaintiff that Lots 11, 12, and 13 would be used for the operation of a cold storage plant, including meat storage and curing; (27) such representations were made for the purpose of securing a building permit; (28) at the time defendant made such representations, he did intend to comply with such representations; (29) the City would not have issued such building permit but for such representations; (30) defendant represented to plaintiff that the premises would be used for cold storage purposes only and, in connection with the operation of the cold storage business, that certain meats being placed in cold...