City of Dallas v. Firestone Tire & Rubber Co.

• Decision Date: 28 October 1933
• Docket Number: No. 11520.,11520.
• Citation: 66 S.W.2d 729
• Parties: CITY OF DALLAS v. FIRESTONE TIRE & RUBBER CO.
• Court: Texas Court of Appeals

66 S.W.2d 729

CITY OF DALLAS v. FIRESTONE TIRE & RUBBER CO.

No. 11520.

Court of Civil Appeals of Texas. Dallas.

October 28, 1933.

Rehearing Denied December 16, 1933.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by the Firestone Tire & Rubber Company against the City of Dallas. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Hugh S. Grady, W. Hughes Knight, A. J. Thuss, and H. P. Kucera, all of Dallas, for appellant.

Crate Dalton and T. M. Dalton, both of Dallas, for appellee.

LOONEY, Justice.

Firestone Tire & Rubber Company, appellee, filed this suit under the provisions of article 1219, R. S., to set aside a special benefit assessment levied by the city of Dallas on a lot of land belonging to appellee, abutting on Ross avenue, and the city appealed from the judgment, setting aside and canceling the assessment.

The city determined, and so declared by resolution, to widen and straighten Ross avenue, from Lamar street to Peak street, a distance of about two miles; the statutory proceedure was pursued, resulting in the condemnation of 214 separate parcels of abutting land, among others, a strip 10×100.64 feet, belonging to appellee, for which it was allowed $3,734.70 damages; the total damages awarded property owners for property taken and incidental expenses amounted to $725,670.41, for the payment of which the city assessed $478,357.15 against property abutting on the avenue, and in the vicinity, and undertook to pay the sum of $247,313.36 from other available funds, the amount assessed against the property of appellee being $9,158.35.

The statute under which the city proceeded (chapter 17 of title 28, arts. 1201-1220, inclusive, R. S.) clothed it with authority to determine the public necessity for such an improvement, gave authority to procure by purchase or condemnation all lands necessary and pay for same wholly from any fund available for such purpose, or wholly from a fund created by assessments against owners and their property abutting, or in the vicinity, specially benefited by the improvement, or partly from each of said funds, as was done in the instant case; however, the statute provides that no assessment can be made against property, or its owner, in excess of the special benefits thereto, in enhanced value from said improvement. The assessment constitutes prima facie evidence of the validity of the proceedings and, unless set aside, as provided in article 1219, R. S., the prima facie case becomes conclusive.

The statute necessarily assumes that all property abutting the widened and improved portion of the street, or in its vicinity, is potentially or may be specially benefited and enhanced in value from the improvement, but whether this is or is not true, in a particular case, is a justiciable issue, upon which the property owner is entitled to offer evidence and be heard, primarily before the assessment is levied, and secondarily at the trial of the statutory suit provided by article 1219, R. S. These general observations are made in view of the questions raised and the discussion to follow.

Appellant urges a number of propositions, based upon assignments, complaining of the charge, and of the closing argument of counsel for appellee, contending that their several and cumulative effect was to impress the jury with the erroneous idea that, notwithstanding the fact that appellee's property was benefited and enhanced in value from the improvement, the same could not be considered the result of special benefits, in that all other abutting property was similarly benefited and enhanced in value; in other words, that because the benefit to appellee's property was of a kind common to all abutting property on the widened street, it was in nature general or "a whole community benefit," as distinguished from a special benefit, therefore could not be considered in estimating benefits to appellee's lots.

The charge, called in question at this point, is the court's definition of the phrase "special benefits," and reads: "You are instructed that by the term `special benefits' is meant such benefits as have accrued specially to this property, by reason of the street improvement in question when completed and made available for use, and which are not shared in generally by the whole community." Appellant objected to the definition, because it failed to furnish a correct rule by which to distinguish "special benefits" from "general benefits," in that the phrase "whole community," used in the definition, unexplained, is vague, indefinite, uncertain, misleading, and confusing.

We think the assignment well taken, and, in view of the objections urged, that the court should have embodied in its charge the idea that benefits, if any, to an abutting lot, may be considered special, dependent upon the facts, although other lots abutting on the improved portion of the street are also similarly benefited.

Appellee's counsel argued consistently and forcefully throughout, by illustration and direct statement, that benefits and enhanced value to all lots up and down Ross avenue, being uniform and of the same nature, were within the meaning of the court's charge, of a general or community nature, therefore could not be considered in assessing special benefits. Illustrative of the nature and trend of the argument, among other things, counsel said: "Now counsel asked and argued to you, gentlemen, that the question for your determination was whether all of the property up and down the street was benefited; that is just the thing that is not for you to consider at all under the court's charge, as I consider the charge outlined for you by the court. You will not consider those benefits that accrued to all other property. * * * The question is, is there a special benefit, not is there a general benefit, but if the benefit coming by increment and enhancement in the value of the property along Ross Avenue comes by reason of the general increment due to the widening of the street, then that is a general benefit, and is not a special benefit, as defined in the court's charge, and we believe that the question is not, was the property along the way, all the way along benefited, but was the property in question benefited by reason of the opening and widening of the street? There is no testimony in the record, as we see it, that would warrant a finding of special benefits." In harmony with this idea, and showing counsel's conception of special benefits, he said: "All right, let's make some examples, under the Court's charge of what I deem to (be) special benefits. In the first place it is a special benefit to Firestone Tire & Rubber Company to have a building and its concourse on a street in front of its property set back so that it makes a uniform street in front of the property. That is a special benefit, the setting back of the Firestone property and the paving in front of this property, but if there was a mudhole there, gentlemen of the jury, if there had been a mudhole there before the improvements and if that whole section in front of the Firestone Tire & Rubber Company property had a chasm there requiring a bridge to be built across it, if that chasm or opening was there it would make their property less valuable and the improvement of that property was specially enhanced, it got an advantage over other property along the way." Thus, construing the court's charge to be in harmony with this view, counsel announced the rule that benefits and enhancement to appellee's lot from the street widening, being of a nature similar to benefits to all other lots abutting on the improvement, could not be considered, other than as general in nature.

We think counsel announced an erroneous rule that was calculated to, and doubtless did, cause the jury to ignore benefits to appellee's property received in common with other abutting lots on the improved portion of the street. The controlling statute proceeds on the idea that all property abutting or in the vicinity of such improvements is potentially, or may be, enhanced in value from special benefits resulting from the improvement; this is shown by provisions of the statute, to the effect that the costs of all property acquired to widen or straighten the street, by purchase or condemnation, including expenses, "may be paid wholly from any fund of the city available therefor, or wholly from the fund created by said assessments [upon property abutting or in the vicinity of such improvements specially benefited thereby], or partly from each of said funds" (article 1202, R. S.), and only in the event the "governing body [of the city] or said commission [where a commission acts] shall determine the amounts, if any, to be assessed," is an assessment of the property authorized (article 1212, R. S.), but "no assessment shall be made against any property, or its owner, in excess of the special benefits thereto in the enhanced value thereof from said improvement. * * *" (article 1209, R. S.) The conclusion is inescapable that the only property liable to assessment for special benefits is "property abutting or in the vicinity of such improvements," and whether in a particular instance this class of property received a special benefit, and, if so, the amount it is enhanced in value, are fact questions to be determined, in the first instance, by the governing body of the city or a commission, after a hearing (article 1212, R. S.) and, in the second instance, by a court, where suit is instituted under article 1219, but, in each instance, the issues are identical; that is, was the property specially benefited and enhanced in value from the improvement, and, if so, in what amount? However, in determining the existence vel non of special benefits, the fact that other abutting property in the same category is more or less similarly benefited from the improvement does not exclude such common benefits from consideration...