City of Llano v. Llano County

• Decision Date: 10 November 1893
• Citation: 23 S.W. 1008
• Parties: CITY OF LLANO v. LLANO COUNTY.
• Court: Texas Court of Appeals

23 S.W. 1008

CITY OF LLANO v. LLANO COUNTY.

Court of Civil Appeals of Texas.

November 10, 1893.

Appeal from district court, Llano county; W. M. Allison, Judge.

Action by the city of Llano against Llano county to abate a nuisance. A demurrer to the petition was sustained, and plaintiff appeals. Reversed.

Chas. L. Lauderdale and R. H. Connerly, City Atty., for appellant. W. C. Linden, Co. Atty., for appellee.

FISHER, C. J.

This is an action by the city of Llano against the county of Llano to abate and remove the county jail and the cesspool in connection therewith from the public square of the city of Llano, they being an obstruction on said public square in the nature of a purpresture and public nuisance; and also an abatement of the cesspool as a nuisance, resulting from its improper construction, whereby noxious gases arising from human faeces deposited therein are dangerous and deleterious to the public health of the citizens of said city. The court below sustained a general demurrer to the petition, and also a special demurrer to the effect that it does not appear that the city of Llano has "such an interest in the subject-matter of said suit as would entitle it to any relief." The city of Llano declining to amend, its suit was dismissed, and judgment rendered that appellee, the county of Llano, "go hence with its costs." From this judgment the appellant appeals.

The petition, in effect, alleges that in the year 1858 the county of Llano, owning the survey upon which the city of Llano was located, caused the survey to be surveyed and divided into lots, blocks, and streets and one public square, and that at said time the said county did dedicate to the public and to public use the said streets and said public square, and that said public square was to be used as a public square, and as a site for a courthouse. It is also alleged that lots and blocks were thereafter sold with reference to said streets and public square, and that many individuals became the purchasers thereof, and that said dedication was accepted by the public; that said public square is situated in the most densely populated portion of said city. Then follow these averments: "About the year 1883, defendant did wrongfully and unlawfully cause to be constructed and erected upon said public square a common jail, which jail constituted no part of the courthouse, and in connection with said jail did then cause to be constructed a cesspool. Thereafter defendant did use, and now continues to use, and to wrongfully and unlawfully maintain, said common jail for the reception and incarceration of criminals, and said cesspool for the reception and deposit and retention of human defecations, offal, and other effete and noxious matter. The construction and maintenance of said jail upon said public square constitutes in itself a use of said public square inconsistent with, and in violation of, said dedication, and the same is an unlawful encroachment upon and obstruction of said public square. That the manner of construction and use of said cesspool is in itself a use of said public square inconsistent with and violative of said dedication. Said cesspool is improperly constructed, and is used by defendant, and defendant threatens to and will, unless restrained, continue to use said cesspool, for the reception and retention of human excrement, offal, and other noxious and effete matter, and is, by reason of such construction and use, dangerous and deleterious to the public health, and is a common and public nuisance, situated in the most densely populated portion of the city of Llano. That plaintiff has often requested defendant to remove said cesspool and jail, but so to do it has refused, and still refuses." The petition concludes with a prayer asking for an abatement and removal of said nuisances, and for a mandatory injunction against the county judge and the commissioners' court of said county requiring said jail and cesspool to be removed.

From the manner in which the case is here presented and treated by the parties we are led to the conclusion that the court below sustained the demurrers principally for the reason that the appellant, the city of Llano, could not maintain this action, and was not entitled to invoke the remedy asked. The record is silent as to the reasons that influenced the action of the court upon the demurrers. The petition alleges that the city of Llano is duly incorporated as a city by virtue of the laws of this state. We understand from this allegation that the city of Llano is incorporated, not by a special charter granted by the legislature, but under the general laws of this state that provide for and regulate the incorporation of cities. This brings us to the consideration of the question: Can the city maintain its action in the form as stated, and is it a proper party to ask relief against the alleged purpresture and nuisance? There are several provisions of the statutory law regulating the powers and duties of a city government that show that the city can sue and be sued, and that give it control of its streets and public grounds, and authorize it to remove obstructions therefrom, and to abate nuisances that affect the public health. Sayles' Civil St. arts. 342, 375, 379, 382, 403, 404, 408, 468, 472, 514, 521. Whatever may have been, or is now, the construction placed upon the common law by some courts, to the effect that public nuisances that are solely injurious to the general public can only be abated at the instance of the sovereign, either by indictment or equitable remedy invoked by its law officers to that end, must yield to a policy that has grown into a principle of law in most of the states of the Union, to the effect that the state, in its sovereign capacity, has delegated its authority in this respect to those municipal corporations that are acting as city governments by authority from the state. The control of these internal matters that affect directly the public interest of the city or of its inhabitants as a part of the general public is left to the governing bodies of the city. The highways and public grounds within the limits of the city are held in trust by it in its municipal capacity for the benefit of the public, to the end that they may be enjoyed and used by the public in the manner authorized by law. When this trust is interfered with, or right invaded, so as to affect the general public in their enjoyment and use of this easement, it is not only proper, but right, that the city should take the proper steps to restore the property to that condition that will prevent its full and unrestricted use and enjoyment by the public. Although the obstruction or invasion complained of may at common law or by reason of some act prohibited by ordinance create and constitute a nuisance per se, and though the city may have the power to abate without judicial ascertainment, the right also exists as a cumulative remedy in the city, by a suit seeking to abate the nuisance and to cause the removal of the obstruction. The right of the city to invoke the remedy insisted on in this case, and to resort to the courts for the protection of the interests of the public in property of which they had the right to its enjoyment and use, has been permitted in many instances. In Trustees v. Cowen, 4 Paige, 511, the defendant erected a building partly in the street and public square. The town brought suit by injunction to restrain the erection, and abate it as a nuisance. The court held that the city could maintain the suit, and said: "The corporation is the proper representative of the equitable rights of the inhabitants of the village to the use of the public square, so as to authorize the filing of the bill." In Mayor, etc., v. Bolt, 5 Ves. 129, the court of chancery in England granted an injunction upon application of the corporation of the city of London to prevent a nuisance by which the lives of the citizens would be endangered. In Hutchinson Tp. v. Filk, 44 Minn. 536, 47 N. W. Rep. 255, the town brought suit to enjoin the erection and maintenance of an obstruction to a public highway, and to recover damages for the expenses in attempting to abate the nuisance. It was insisted that the nuisance was only abatable by indictment or by suit at the instance of the state through its attorney general. The court held that the remedy invoked by the city was proper, and in disposing of the question said: "A city corporation is a governmental agency, to which is intrusted the care and superintendence of highways within its boundaries, and of removing obstructions therefrom. And in all matters pertaining to the highways, a town, to the extent of these powers and duties, is the representative of the state; and if it has the power to abate such a nuisance, as it undoubtedly has, there is no apparent reason why it may not, in a proper case, resort to a court of equity to aid it by injunction or other appropriate remedy in the performance of its public duties as a governmental agency of the state." To the same effect is Village of Pine City v. Munch, (Minn.) 44 N. W. Rep. 197. In Price v. Inhabitants of Plainfield, 40 N. J. Law, 608, it is held that the city has the authority to bring a suit for land that is dedicated to the public. The theory upon which the right is permitted is by virtue of its representing the public, in which is the right of possession. In Campbell Co. v. Town of Newport, 12 B. Mon. 539, a suit in equity by the town against the county to restrain it in the erection of buildings upon the public square was allowed. In City of Denver v. Mullen, 7 Colo. 346, 3 Pac. Rep. 693, it is held that a city may maintain an action to abate a nuisance. City of New Orleans v. Lambert, 14 La. Ann, 247, holds that the city may by injunction restrain and abate a nuisance. In City of Dubuque v. Maloney, 74 Amer. Dec. 365, it is held that a city, by a suit for the benefit of the public, may enjoin a nuisance. In Metropolitan...