City of Electra v. Cross

• Decision Date: 30 October 1920
• Docket Number: (No. 9607.)
• Citation: 225 S.W. 795
• Parties: CITY OF ELECTRA v. CROSS et al.
• Court: Texas Court of Appeals

225 S.W. 795

CITY OF ELECTRA v. CROSS et al.

(No. 9607.)

Court of Civil Appeals of Texas. Ft. Worth.

October 30, 1920.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by the City of Electra against D. T. Cross and others. From an order dissolving a temporary writ of injunction, plaintiff appeals. Affirmed.

Harris & Graham, of Dallas, for appellant.

E. E. Kelley, of Wichita Falls, for appellees.

DUNKLIN, J.

The city of Electra was granted a temporary writ of injunction restraining D. T. Cross, A. H. Beals, and F. F. Moore from erecting, maintaining, and operating what is commonly termed a "filling station" to be placed at the intersection of two of the public streets in said city; the alleged purpose of said filling station being the storage of gasoline, lubricating oils, etc., to be offered for sale to the public.

As soon as the petition was filed, it was presented to the judge of the district court, who acted upon it in chambers and granted a temporary writ restraining the defendants from constructing and operating the filling station; but later, upon a hearing of the defendants' motion to quash the writ, at which hearing both parties appeared, the temporary writ was dissolved by the court in regular session. From that order, the plaintiff has prosecuted this appeal. The order of the trial court dissolving the temporary writ further provided that the operation of the order should be suspended, pending the appeal.

The defendants did not file any answer to the merits of the petition, but filed only a motion to dissolve the temporary writ of injunction, and the only grounds urged for the dissolution of the injunction consisted, substantially, of a general demurrer to the sufficiency of the petition, and the sufficiency of the petition as against that demurrer was the only question passed on by the trial court; no evidence being introduced by either party.

Following is a copy of plaintiff's petition:

"Now comes the city of Electra, hereinafter styled plaintiff, and complaining of D. T. Cross A. H. Beals, and F. F. Moore, hereinafter styled defendants, and for cause of action plaintiff would respectfully show to the court:

"(1) That plaintiff is a municipal corporation duly incorporated under the laws of the state of Texas, and is located in Wichita county, Tex., and operates under a special charter adopted by the people of the city of Electra, which charter confers upon said city all the powers conferred upon cities and towns by title 22 of the Revised Civil Statutes of Texas, and by section 4 of chapter 147, Acts of the 33d Legislature, General Laws, Regular Session, 1913, at page 310 to 316 [Vernon's Sayles' Ann. Civ. St. 1914, art. 1096d] entitled `An act authorizing cities having more than five thousand inhabitants, by a majority vote of the qualified voters of said city, at an election held for that purpose, to adopt and amend their charters.'

"That the defendants and each of them reside in Wichita county, Tex.

"(2) That the defendant D. T. Cross is the owner of lots 11 and 12, in block 64, in the city of Electra, Tex., and particularly that part of said lots situated in the southwest corner of said block, and being at the intersection of Waggoner and Cleveland streets, and in this connection plaintiff alleges that said location is in the most thickly built up portion of the city of Electra; it is in the heart of the business district and is adjacent to and surrounded by business houses, and said lots are located on and adjacent to two of the principal business streets in said city. That practically the entire population of said city in passing into, through, or out of said city of Electra, pass the above location from time to time, and said location is one of the most used public places in said city in the way of traffic, both by vehicles and pedestrians.

"(3) Plaintiff further alleges that on or about the 10th day of September, 1920, the exact date being unknown to plaintiff, the defendant Cross leased, demised, and let said above-described premises, and particularly a strip of land fronting 33 feet on Cleveland street by 43 feet fronting on Waggoner street, in the southwest corner of said block 64, to the defendants Beals and Moore for a term of years, the exact terms of said lease being unknown to plaintiff, but plaintiff alleges that the defendant Beals and Moore having determined to erect what is commonly known as a filling station on said property and have actually commenced the construction thereof without any permit from the authorities of said city; that the business to be transacted by said filling station is the storage and sale to the public generally of gasoline and lubricating oils and such other articles of merchandise as is commonly sold at filling stations, and that in order to carry on said business it will be necessary for said defendants to provide a large container for gasoline under the ground adjacent to said property, in which container there will be stored from time to time for sale hundreds and thousands of gallons of gasoline, which, if the same should become ignited and should explode, would necessarily wrought great havoc with persons and...