City of San Antonio v. Pigeonhole Parking of Texas

Decision Date06 March 1957
Docket NumberNo. 13117,13117
Citation300 S.W.2d 328
PartiesCITY OF SAN ANTONIO, Appellant, v. PLGEONHOLE PARKING OF TEXAS, Inc., Appellee.
CourtTexas Court of Appeals

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

Rosson & McGown, Harvey L. Hardy, San Antonio, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Pigeonhole Parking of Texas, Inc., against the City of San Antonio, seeking the issuance of a writ of mandamus requiring the city to issue it a permit to make a curb cut and construct a driveway for egress and ingress of motor vehicles from its lot to West Houston Street.

(1) Plaintiff is the owner of a lot that abuts both Soledad and West Houston Streets. It has built on this lot a so-called pigeonhole parking garage for automobiles, at great expense. Plaintiff formally applied to the city for a permit to cut the curb and construct a driveway on the Soledad side of its lot. This permit was granted and plaintiff now has a driveway on that street which is about eighty-nine feet in width.

Thereafter, on January 23, 1956, plaintiff applied to the city for a permit to cut the curb and construct a driveway from West Houston Street to its lot and garage. This permit was denied and plaintiff filed suit in the district court and was granted a writ of mandamus as prayed for, from which judgment the city has prosecuted this appeal.

Before the writ of mandamus was granted the city passed an ordinance prohibiting the granting of any additional curb cuts on Houston and Commerce Streets between Alamo Street and Main Avenue. This ordinance covered that part of West Houston Street abutted by appellee's lot on which its pigeonhole garage stands. The ordinance was actually passed before appellee filed its suit, but inasmuch as appellee delayed filing its suit at the suggestion of the city attorney it was stipulated that the suit should be regarded as filed before the ordinance was passed. Appellee's first counterpoint is:

'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.'

We sustain this contention. In Adams v. Grapotte, Tex.Civ.App., 69 S.W.2d 460, 462, Chief Justice Hickman had this to say:

'Access to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property passing to the lessee. That right cannot be taken for public purposes or destroyed without adequate compensation being made therefor. * * * (Citing authorities) This right of access extends to the invitees of the owner and lessee. 44 C.J. 945. It is true that sidewalks are built primarily for pedestrians, and not for vehicular traffic, but it does not follow that vehicles have not the same right to pass over them as a means of access to places of business abutting thereon that pedestrians have to walk longitudinally upon them. In the case of Schindler v. Schroth, 146 Cal. 433, 80 P. 624, 625, 2 Ann.Cas. 670, the opinion by the Supreme Court of California states: 'The use of a sidewalk by the owner of a lot for purposes of communication with the street is equally legitimate, and equally an ordinary use, as that of passing longitudinally along it."

The right of an owner of an abutting lot to cut the sidewalk and build a driveway across same for the passage of vehicles is almost universally recognized throughout the United States. 25 Am.Jur. 448, § 154; State ex rel. Gebelin v. Department of Highways, 200 La. 409, 8 So.2d 71; Anzalone v. Metropolitan Dist. Comm., 257 Mass. 32, 153 N.E. 325, 47 A.L.R. 897; Newman v. Mayor of City of Newport, 73 R.I. 385, 57 A.2d 173; Brownlow v. O'Donoghue Bros., Inc., 51 App.D.C. 114, 276 F. 636, 22 A.L.R. 939.

The city may pass ordinances for the purpose of regulating the cutting of sidewalks and building driveways across the same, but it may not arbitrarily deny to abutting property owners such right. It such right is prohibited entirely it amounts to the taking of property, and that can only be done by due process of law and the payment of just compensation. Annotations: 22 A.L.R. 942; 66 A.L.R. 1052; 39 C.J.S., Highways, § 141; 64 C.J.S., Municipal Corporations, § 1703, p. 99. The right to...

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  • City of San Antonio v. Pigeonhole Parking of Texas
    • United States
    • Texas Supreme Court
    • 26 Febrero 1958
    ...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 sidew......

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