City of Waco v. DuPuy, 4242
| Decision Date | 31 December 1964 |
| Docket Number | No. 4242,4242 |
| Citation | 386 S.W.2d 192 |
| Parties | CITY OF WACO, Appellant, v. Leslie C. DuPUY, Jr., Appellee. |
| Court | Texas Court of Appeals |
Thomas R. Hunter, City Atty., Earl Bracken, Asst. City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
Naman, Howell, Smith & Chase, Waco, for appellee.
Plaintiff DuPuy filed this suit against the City of Waco to recover damages to his property, caused by the construction by the City of a viaduct on 17th Street, on which fronted plaintiff's property. None of plaintiff's property was taken by the City in the construction; but the construction of the viaduct cut plaintiff's property completely off from 17th Street, and rendered it accessible only by an alley, and by a way under the viaduct which connects with Mary Street to the South, and upon which is located railroad tracks. Plaintiff instituted suit under Article 1, Section 17 of the Constitution of Texas, Vernon's Ann.St., which provides:
"No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, * * *."
The City constructed the viaduct to eliminate two hazardous railroad grade crossings; made 17th Street a one-way street as a part of a newly established crosstown thoroughfare; and asserted that it acted under Article 1175, Vernon's Ann.Civ.Tex.St. (which gives cities exclusive control over their streets, and the power to pave, raise, grade, and fill same); as well as under the city's police power for the health, safety and welfare of the public.
Trial was to a jury which found that the value of plaintiff's property was $15,500 immediately before the construction of the viaduct; and that the value of such property was $7000 immediately after such construction.
The Trial Court entered judgment on the verdict for plaintiff for $8,500.
Defendant City appeals, contending that the Trial Court erred in holding the City liable to plaintiff for damages due to the limitation of access caused by the construction of a viaduct, under the police power, when the plaintiff retained reasonable access to the street system of the City of Waco.
Plaintiff contends that the fundamental question for determination is whether the City is liable to him under Article 1, Section 17, of the Constitution of Texas for taking, damaging, or destroying his property.
There can be no question (and the jury so found), that plaintiff's property has diminished in value; and that plaintiff has lost all access to 17th Street as a result of the construction of the viaduct.
It is clear from the record that the construction of the viaduct was a valid exercise of the police power by the City. It is...
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DuPuy v. City of Waco, A-10644
...power, wherefore Petitioner had no cause of action since there was neither a physical taking nor a complete loss of access. City of Waco v. DuPuy, 386 S.W.2d 192. The location of the property of Petitioner in relation to the viaduct and the surrounding streets is depicted on the accompanyin......