City of San Antonio v. Pigeonhole Parking of Texas

• Decision Date: 26 February 1958
• Docket Number: No. A-6339,A-6339
• Citation: 158 Tex. 318,73 A.L.R.2d 640,311 S.W.2d 218
• Parties: , 73 A.L.R.2d 640 CITY OF SAN ANTONIO, Petitioner, v. PIGEONHOLE PARKING OF TEXAS, Inc., Respondent.
• Court: Texas Supreme Court

Page 218

311 S.W.2d 218

158 Tex. 318, 73 A.L.R.2d 640

CITY OF SAN ANTONIO, Petitioner, v. PIGEONHOLE PARKING OF TEXAS, Inc., Respondent.

No. A-6339.

Supreme Court of Texas.

Feb. 26, 1958.

Rehearing Denied April 9, 1958.

Carlos C. Cadena, City Atty., A. W. Worthy, Jr., Asst. City Atty., San Antonio, for petitioner.

Sawtelle, Hardy, Davis & Goode, Frank M. Rosson, San Antonio, for respondent.

CULVER, Justice.

The respondent sought a writ of mandamus against the petitioner, City of San Antonio, to compel the issuance of a permit for a curb cut and the construction of driveway for vehicular traffic across the sidewalk on Houston Street to its property located on the corner of Soledad and Houston in the City of San Antonio. The granting of the writ by the trial court was affirmed by the Court of Civil Appeals. 300 S.W.2d 328, 329.

Respondent had constructed a 10-story parking garage on its corner lot. The City had granted a permit for an 89 foot driveway across the sidewalk on Soledad Street. In January of 1956 the City denied a permit for a curb cut and driveway across the sidewalk on Houston Street. In the following month the City Council enacted an ordinance providing that: 'No permit shall be issued for construction of any curb cut or driveway leading onto those portions of Commerce and Houston Streets which lie between Main Avenue and Alamo Street.' This suit was filed subsequently to the passage of the ordinance. The parties have stipulated that the action be considered in all respects as though filed prior to th enactment of the ordinance quoted above. However, we consider this stipulation to have no material effect one way or the other.

The Court of Civil Appeals based its affirmance solely upon the proposition that:

'Appellee's right of access as an abutter is a property right and appellant's ordinance flatly prohibiting the issuance of permits which would make such access possible is an unconstitutional taking of said property right.'

Undoubtedly the general rule is that access to a public highway is an incident to ownership of land abutting thereon and the corollary follows that this right cannot be taken or destroyed for public purposes without adequate compensation being given therefor. Adams v. Grapotte, Tex.Civ.App., 69 S.W.2d 460; Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A., N.S., 1615. While this rule is universally followed where the power of eminent domain is exercised, it does not apply when a municipality invokes its police power for the protection of the health, safety and general welfare of its citizens.

Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478, in upholding the constitutionality of zoning ordinances, approved the following rule of law:

'All property is held subject to the valid exercise of the police power; nor are regulations unconstitutional merely because they operate as a restraint upon private rights of person or property or will result in loss to individuals. The infliction of such loss is not a deprivation of property without due process of law; the exertion of the police power upon subjects lying within its scope, in a proper and lawful manner, is due process of law. Moreover, police regulations do not constitute a taking of property under the right of eminent domain; and compensation is not required to be made for such loss as is occasioned by the proper exercise of the police power. * * *'

The problem we deal with here, whether the abutter has the absolute right to cross the sidewalk with his driveway, irrespective of any other facts and considerations, is one on which authorities do not agree, though our search has revealed no controlling Texas decision.

The lack of uniformity among the authorities seems to be no less apparent now than it was in 1906 when it was observed in Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 690, 51 L.Ed. 1176, that:

'* * * The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all of the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy. * * *'

The respondent concedes to the City the right of regulation under its police power but contends that this right stops short of complete prohibition. We will discuss the cases upon which respondent principally relies. Some of them, though not all, are to be distinguished from the facts and circumstances of our case, so that aside from a general statement of the law they would have little application. For example, in Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353, the court held that access to a public way across the sidewalk is a vested right of which the owner cannot be deprived without compensation, but went further and struck down the ordinance on the ground that it was discriminatory.

The land involved in State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71, lay outside the city limits. The plaintiff owned two tracts on opposite sides of the highway fronting 1,800 and 1,000 feet respectively. He proposed to subdivide into 29 lots on the north and 16 on the south. While the plaintiff contended for an access to the highway from each lot he asked only for six entries on the north and four on the south. The points of entry were allowed as prayed for, the court pointing out that the six connections on the north would be approximately 300 feet apart and the four on the south 270 feet apart, saying that if the owner has free and convenient access to his property he has no cause of complaint. Implicit is the conclusion that the Court would not have held each subsequent lot purchaser entitled to direct access to the highway merely because his lot abutted on the highway. Goodfellow Tire Co. v. Commissioner of Parks & Boulevards, 163 Mich. 249, 128 N.W. 410, 30 L.R.A.,N.S., 1074, construed a legislative act creating the Board of Commissioners as not empowering the Board to deny the permit.

In Royal Transit Co. v. Village of West Milwaukee, 266 Wis. 271, 63 N.W.2d 62, it appears that the decision was based upon statutory grounds. The issue was resolved by a determination of whether or not the property abutted on the street within the meaning of the statute.

This is not to say that other of the authorities cited by respondent notably Anzalone v. Metropolitan District Commission, 257 Mass. 32, 153 N.E. 325, 17 A.L.R. 897; Howell v. Board of Commissioners, 169 Ga. 74, 149 S.E. 779; Brownlow v. O'Donoghue Bros., Inc., 51 App.D.C. 114, 276 F. 636, 22 A.L.R. 939, and Newman v Mayor of City of Newport, 73 R.I. 385, 57 A.2d 173 can be disposed of in that fashion. They generally support respondent in his contention that the municipality can regulate but not prohibit. In Howell v. Board of Commissioners, supra, (169 Ga. 74, 149 S.E. 781) the Court having under consideration the validity of a similar ordinance said:

'This easement of access is a property right, of which the landowner cannot be deprived, upon the ground that the safety of the public traveling upon the highway may be endangered by the exercise of this easement by the abutting landowner, without just and adequate compensation being first paid to the owner. * * *.'

and held that the owner of the corner lot and the filling station thereon was entitled to access for motor vehicles over the sidewalks on both streets.

On the other hand there are authorities that reflect a contrary view and would uphold the ordinance as a valid exercise by the City of its police power. This view we adopt.

In Alexander Co. v. City of Owatonna, 1946, 222 Minn. 312, 24 N.W.2d 244, 256, the refusal by the City Council to grant application for driveway over the sidewalk to serve a private business was held to be a proper exercise of the police power and not a denial of due process where the regulation had a substantial relation to public safety. The decision is based in part upon the rule that an abutting owner may not appropriate a part of the street for the purpose of his own private business. The Court reasons that this is just what the plaintiff was there attempting to do in seeking to construct a driveway for vehicular traffic over the public sidewalk. The Court observes: '* * * there is very little force in the argument that a regulation which in the interest of the public safety prohibits the construction and maintenance over a public sidewalk of a vehicular driveway for the use of a private business is an unreasonable and unlawful exercise of the police power and a denial of due process.' In that case the majority opinion and the dissent ably present the conflicting views and discuss many of the authorities cited by the parties here.

In Breinig v. County of Allegheny, 332 Pa. 494, 2 A.2d 842, 847, while recognizing expressly the general rule contended for by respondent that the abutting owner has the right of access to his property, and that the right cannot be taken from him without compensation, nevertheless, the Court holds that, 'in highly congested areas the right of vehicular access to property abutting the highway may be reduced to a minimum and be so limited as to exclude the right to maintain driveways immediately fronting the property, where it is possible to locate them elsewhere, * * *.'

The same court earlier in Farmers-Kissinger Market House Co., Inc. v. Reading, 310 Pa. 493, 165 A. 398, 401, concluded that an ordinance forbidding the use of a congested sidewalk for vehicular traffic was a proper and reasonable exercise of the City's police power. The facts and holdings in this case are quite pertinent, so much so that we quote:

'That plaintiff has the right of egress from its property to Penn street...