City of Fort Worth v. Johnson

• Decision Date: 12 March 1964
• Docket Number: No. 36,36
• Citation: 377 S.W.2d 699
• Parties: CITY OF FORT WORTH, Appellant, v. L. C. JOHNSON et al., Appellees.
• Court: Texas Court of Appeals

Page 699

377 S.W.2d 699

CITY OF FORT WORTH, Appellant, v. L. C. JOHNSON et al., Appellees.

No. 36.

Court of Civil Appeals of Texas, Tyler.

March 12, 1964.

Rehearing Denied April 16, 1964.

S. G. Johndroe, Jr., City Atty., Fort Worth, for appellant.

William D. Campbell, Campbell & Campbell, Fort Worth, for appellees.

SELLERS, Justice.

This is a suit by the City of Fort Worth against L. C. Johnson and others; but in all material respects, the suit is against Mrs. Laverne Hurt, seeking to permanently enjoin the defendant, Mrs. Laverne Hurt, from using a six-unit apartment house located on Lot 3, Block 5, Hawkins Scenic Hill Addition to the City of Fort Worth, Tarrant County, Texas (also known as 858 Scenic Hill Drive), in such a manner that not more than two families reside on the premises at the same time.

The trial was to the court without a jury. At the conclusion of the plaintiff's evidence, the trial court announced that in its opinion the evidence was insufficient to grant the relief sought.

Plaintiff's pleadings material were as follows:

'That the premises located at 858 Scenic Hill Drive, in the CITY OF FORT WORTH, Texas, the same being Lot 3, Block 5, Hawkins Scenic Hill Addition to the City of Fort Worth, Tarrant County, Texas, are now, and have been at all times pertinent to this cause of action, within a 'B' two family zone as defined in Ordinance No. 3011 of the City of Fort Worth, and such ordinance was in effect before the construction of the six-unit apartment house presently located thereon.

'That at the time of the filing of this petition and prior thereto, and all times referred to herein, the Defendants have owned, possessed and controlled the premises and improvements at 858 Scenic Hill Drive, Fort Worth, Texas, the same being Lot 3, Block 5, Hawkins Scenic Hill Addition to the CITY OF FORT WORTH, Tarrant County, Texas, and used, or caused to be used, the said premises and improvements for the purpose of the renting or leasing same in such a manner that more than two families were residing on said premises at the same period of time; and at the time of filing of this action more than two families are residing on said premises; and such use by the Defendants of the said premises is expressly prohibited by Ordinance No. 3011 of the CITY OF FORT WORTH.

'That though often requested and notified to cease and desist from the use and operation of the premises and improvements for the purpose of renting or leasing same in such a manner that more than two families reside on said premises at the same period of time, the Defendants have steadfastly failed and refused to cease and desist therefrom and have continued to use and operate the premises and improvements for the purpose of renting or leasing same in such a manner that more than two families reside on said premises at the same period of tiem, in plain violation of Ordinance 3011 of the CITY OF FORT WORTH.

'That the acts of the Defendants as hereinbefore alleged are and will be continuing in their nature; that neither this plaintiff nor its residents have an adequate remedy at law; that this plaintiff and its residents will suffer irreparable injury and damage to their health, safety and welfare unless this court enters its order restraining Defendants and enjoining Defendants from using said premises for the purpose of renting or leasing same in such a manner that more than two families reside on the premises at the same period of time; that the existing conditions should be in all things permanently corrected and the Defendants enjoined to correct said conditions to conform to the provisions of Ordinance No. 3011 of the City of Fort Worth; the building or structure, unless enjoined, will in the future continue to exist and be used in violation of law; that the Plaintiff and the public now and in the future, will suffer irreparable injury unless the injunction requested by the Plaintiff is granted by this court.'

The petition closes with a prayer for a permanent injunction enjoining defendants from using the property in such a manner that nor more than two families reside on said property at the same period of time.

Defendant, Mrs. Laverne Hurt, in her answer plead a general denial, laches, and irreparable injury if plaintiff recovers.

The evidence offered by the City is very well stated by the Appellee on page 3 of its brief:

'Witness John M. May, Zoning Administrator for Appellant, has never talked to Appellee. (SF-19). Witness May states that on basis of physical and structural appearance, building in question would add to improvement of neighborhood. (SF-24).

'Witness Joe Tyson, tenant of Appellee, testified that rent he paid Appellee for one apartment was reasonable but about as high as he would expect to pay for such accommodations (SF-29) and that if the total building was divided into two units, a rental of $265.00 per month would not be feasable. (SF-28). It was stipulated that all other five tenants of Appellee, who were in Court, if testifying would testify substantially as did Witness Tyson, (SF-31).

'Witness T. Avery testified he was out at the building several times (SF-33), but talked to Appellee only one time. (SF-54). He stated that only one person, a Miss Davis, contacted him personally to make a complaint about the use of the property in question. (SF-42). One other man called him but he didn't know his name. (SF-44).

'Concerning the building in question, Avery testified that it is one of, if not the most attractive structure in the entire community. (SF-51). In connection with possible building space congestion, Avery testified that the building in question is further away from surrounding buildings than the buildings (on either side of it, in back of it or across the street from it) are from...