City of Snyder v. Cogdell

• Citation: 342 S.W.2d 201
• Decision Date: 11 November 1960
• Docket Number: No. 3598,3598
• Parties: CITY OF SNYDER, Appellant, v. D. M. COGDELL, Sr., Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 201

342 S.W.2d 201

CITY OF SNYDER, Appellant, v. D. M. COGDELL, Sr., Appellee.

No. 3598.

Court of Civil Appeals of Texas, Eastland.

Nov. 11, 1960.

W. W. Park, Snyder, for appellant.

Gene L. Dulaney, Snyder, R. M. Wagstaff, Abilene, for appellee.

COLLINGS, Justice.

The City of Snyder on June 28, 1960, brought an action in the District Court for an injunction against D. M. Cogdell, Sr. It was alleged that Cogdell, in violation of the zoning ordinance of the City, on or about May 24, 1960, began the construction of a business building within the City without first obtaining a permit. The City prayed that the court issue a temporary injunction commanding Cogdell to cease erecting and constructing the building and that upon a final hearing the injunction be made permanent. After notice and hearing, the court entered judgment denying the petition for a temporary injunction. The City of Snyder has appealed.

Appellant presents one point of error in which it is urged that the court erred in denying the temporary injunction because the undisputed evidence showed that Cogdell was erecting and constructing a building within the City of Snyder without having first obtained a building permit as required by the zoning ordinance. The only violation complained of by appellant is the failure of Cogdell to obtain a permit. The evidence shows that the plans of the building fully comply with the requirements of the Building Code and the Zoning Ordinance.

The material portion of the City ordinance was introduced in evidence, and provides that:

'No person shall erect or construct or proceed with the erection or construction of any building or structure, nor add to, enlarge, move, improve, alter, repair, convert, extend or demolish any building or structure or cause the same to be done in any zone district of the City of Snyder withot first applying for and obtaining a building permit therefor from the Building Inspector. All applications for such permits shall be in accordance with the requirements of this ordinance and building code of the City of Snyder and unless upon written order of the Board of Adjustment, no such building permit or certificate of occupancy shall be issued for any building where said construction, addition, alteration or use thereof would be in violation of any of the provisions of this ordinance.' (Emphasis ours.)

Appellant contends that it was entitled to an injunction as a matter of law under Article 1011h of Vernon's Revised Civil Statutes of Texas, which provides in part as follows:

'In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.' (Emphasis ours.)

The granting or refusing of a temporary injunction is ordinarily within the discretion of the trial court, which, although not unlimited, will not be disturbed on appeal unless the...