City of Lubbock v. Stubbs, 6428
| Decision Date | 18 October 1954 |
| Docket Number | No. 6428,6428 |
| Citation | 278 S.W.2d 519 |
| Parties | CITY OF LUBBOCK, Appellant, v. Roger Q. STUBBS, Appellee. |
| Court | Texas Court of Appeals |
Vaughn E. Wilson, City Atty. and Clyde A. Mote, Asst. City Atty., Lubbock, for appellant.
Campbell & Brock, Lubbock, for appellee.
This was an action brought by the City of Lubbock, as plaintiff, against Roger Q. Stubbs, as defendant, seeking to permanently restrain and enjoin defendant, his agents, heirs, representatives, assigns, lessees, tenants and other persons holding under him from using or permitting the use and occupancy of certain premises and structures in violation of certain ordinances and requiring him, at his own cost and expense, to tear down, remove and vacate from such premises all additions, enlargements, improvements, repairing, construction, water lines, sewer lines and the construction of all other utilities which was commenced and/or completed in violation of such laws provided. Plaintiff pleads the land in question was annexed to the City of Lubbock and complains of defendant violating certain city ordinances namely zoning, building code, subdivision regulations, curb and gutter, plumbing and sewage.
The trial court granted a temporary restraining order restraining and enjoining defendant, operative until and pending the hearing, from construction on or preparing for use and occupancy the premises in question without a building permit or continuing to construct any structures on said premises and from using or occupying or permitting the use and occupancy of such premises as a tourist court and/or trailer court or for rental property of any type or nature, in any structure constructed in violation of the ordinances as provided.
The defendant answered contending that the allegation in plaintiff's petition showed on the face thereof that if the property in question was annexed to the City and automatically placed in 'A' zone, such was unreasonable-was a violation of the due process clause of the United States Constitution and the state constitution-that the allegation did not state the character of use made of the property at and prior to the annexation-that there are no pleadings to support the allegation that the property was lawfully placed in 'A' zone-that the zoning of the premises in question in an 'A' zone at the time of the alleged annexation and ever since was arbitrary and unreasonable and such caused him injury and damage. The defendant further pleaded that at the time of the alleged annexation, and ever since, his said property was owned, used and improved for business use-that upon the property was his lumber yard, grocery store, planing mill, silo and two room residences which he had constructed, and made several other allegations not necessary to mention here. All matters were continued in force until a final hearing was had. Following final hearing, the court ordered that the plaintiff take nothing by virtue of its action and that any and all relief prayed for by the plaintiff be denied and that all costs of the proceedings was taxed against the plaintiff and any and all temporary injunctions and/or restraining orders theretofore issued by the court in this cause were dissolved and held for naught. From this order plaintiff excepted and gave notice of appeal and perfected this appeal.
The court was requested by the plaintiff to make and file its findings of facts and conclusions of law. The trial court complied with the request and filed its findings of facts and conclusions of law. The court stated the evidence adduced created a doubt as to whether defendant's property was lawfully annexed to the City but the judgment was not based on the fact that said property was not, in fact, annexed.
Among other findings of fact, the court found as follows:
'The Court finds as a fact that defendant's said property was acreage property when it was annexed; that such property consisted of some two acres of land with an outlet on Avenue P to the East and on 36th Street on the South, that there was no street on the North or the West affording outlets from his property; that defendant had actually used and improved said property for business use for many years prior to the alleged annexation; that upon said property was a grocery store, a lumber yard, plaining mill, silo and grainery and one or more small frame houses built and set on blocks for sale and removal.
'Defendant's home was also located on the property and used and occupied by him in the operation of his business enterprise. He was so using said property at the time of the alleged annexation and had for many years prior thereto; likewise he was so using said property at the time of the temporary injunction and restraining order.
'V
'At the time of the annexation the city zoning ordinance automatically placed said property in an 'A' zone for residence use and improvement only. The City did not rezone or attempt to rezone said property after annexation and would not permit improvements of said property for the business use of which the defendant was making and using his said property at the time; indeed, the evidence established the fact that no permit would or could be issued where any character of improvements could be made other than for residence purposes only, and that no permits would be issued unless the defendant first platted and subdivided his property and caused a street to be dedicated on the North side of his property, known as 35th Street. One of the witnesses for the defendant admitted that no permit to erect a $100,000.00 residence would be or could be granted by the City. Further, the evidence showed that one E. F. Dawkins contracted to purchase a part of said acreage property and erect a dwelling thereon to comply with the building code laws, but the City refused any permit for any character of residence because said premises had not been subdivided and platted with an outlet to the North.
'VI
'I further find that at and prior to the alleged annexation the defendant's premises were served with waterby the City of Lubbock through mains and pipe lines that the City had inspected and not condemned, and that the use said defendant was making of his property was not in any wise injurious to the public health or general welfare of the public in and around the vicinity of his property.
'VII
'I further find that for more than two years just prior to this suit for injunction...
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