City of San Antonio v. Stumburg

• Decision Date: 23 March 1888
• Citation: 7 S.W. 754
• Parties: CITY OF SAN ANTONIO v. STUMBURG.
• Court: Texas Supreme Court

Page 754

7 S.W. 754

CITY OF SAN ANTONIO v. STUMBURG.

Supreme Court of Texas.

March 23, 1888.

Appeal from district court, Bexar county; G. H. NOONAN, Judge.

Suit for injunction by George R. Stumburg against the city of San Antonio and the county of Bexar, to restrain the erection of a certain building on the public square of the city. A perpetual injunction was granted, and the city appeals.

Oscar Bergstom, for appellant. L. N. Walthall, for appellee.

GAINES, J.

This suit was brought by appellee to enjoin the appellant, the city of San Antonio, and also the county of Bexar, from erecting a public building upon the open space in the city, which is known as the "Military Plaza." The trial court, upon the hearing, granted a perpetual injunction, and the city alone appeals. The cause was tried upon an agreed statement of facts, from which it appears that the appellee is a property owner and a taxpayer in the city, but that his property does not abut upon the plaza, and that he is not specially injured by the obstructions which were about to be placed thereon. It also appears that the military plaza is an open square, and is now and has been for a time beyond the memory of the oldest inhabitant used as a market place for the sale and exchange of provisions and live-stock, and for the drilling of soldiers; that San Fernando (now San Antonio) was laid out and erected into a town as early as the year 1731, by a decree of the king of Spain; that the military plaza was on the west side of a church then built or ordered to be built, and that the main plaza was on the east side of said church, the two plazas being separated only by the ground on which the church was erected and the lots for the erection of a priest's house adjacent thereto; that about the year 1844 there remained on the north side of the military plaza a temporary structure for the quartering of troops, and about the year 1845 or 1846 a portion of such structure at the west end thereof was removed, so as to allow access to the plaza at its north-west corner; that there are in San Antonio citizens whose recollections extend back 60 or 70 years, and that they were told by old men then living that said structure extended on the west and south sides of the plaza, thus completely inclosing it on three sides, and leaving the east side (towards the church) uninclosed. The statement of facts also shows that the city has more than 10,000 inhabitants, and has a special charter from the legislature which empowers it to open, establish, extend, improve, and abolish all streets and public places within the city, so far as it may lawfully be done; that its city council had regularly passed a resolution for the erection of a city hall on the military plaza, and that the city was about to carry such resolution into effect, and that a contract had been entered into between the city and the county of Bexar, by which the former was to lease to the latter a portion of the building which was to be erected for its court-house and county offices. It also appeared that the use of the plaza for military purposes had long been discontinued, and that the city had for a long time permitted coffee-stands thereon, from which provisions, vegetables, etc., were sold; and that for these licenses "rentals were paid" to the city. It was objected in the court below, and is insisted here, that the plaintiff showed no such interest as authorized him to bring this suit; and if this ground be well taken, the judgment must be reversed.

We think it a principle established by the overwhelming weight of authority in the courts of all countries subject to the common law that no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself. As applied to public nuisances the doctrine is elementary. 2 Cooley, Bl. 219. For a special damage resulting from the invasion of a right enjoyed by a party in common with the public, the law affords him a remedy by private action, but if the damages he suffers are only such as are common to all, the action must be brought by the lawfully constituted guardian or guardians of the public interest. The principle has been frequently applied in this court to another class of cases, and...