City of Waco v. Texland Corp.
| Decision Date | 21 February 1968 |
| Docket Number | No. 4687,4687 |
| Citation | 425 S.W.2d 374 |
| Parties | CITY OF WACO, Appellant, v. TEXLAND CORPORATION and W. M. Kelly, Appellees. . Waco |
| Court | Texas Court of Appeals |
Earl Bracken, Jr., City Attorney, Waco, for appellant.
John F. Sheehy, Bryan, Wilson, Olson & Stem, D. M. Wilson, Waco, for appellees.
Plaintiffs Texland and Kelly filed separate suits against the City of Waco to recover damages to their properties, caused by the construction by the City of a viaduct on 17th Street, on which plaintiffs' properties fronted. No properties of plaintiffs were physically appropriated by the City, but access to plaintiffs' properties was impaired by the viaduct. The trial court consolidated such suits. Trial was to a jury which found that Texland's property was damaged $9,500 and that Kelly's property was damaged $6,000 by construction of the viaduct. The trial court rendered judgment for plaintiffs on the verdict.
The City appeals, contending 'the trial court erred in awarding any monetary damage to plaintiffs, as all of the damages alleged and proved are damnum absque injuria.'
The question presented is whether damages for the diminishment in value of plaintiffs' property resulting from impairment of access is recoverable under Article I, Sec. 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 location of plaintiffs' properties is superimposed on the Supreme Court's diagram in the DuPuy case. Prior to construction of the viaduct, Texland fronted on 17th Street and sided on Mary, and Kelly fronted on 17th Street and sided on Mary. The viaduct elevated 17th Street above the properties, and left access to the front by a way under the viaduct between the supporting columns; but 17th Street dead ends at DuPuy's property on the north, and between Jackson and Webster on the south. Plaintiffs' properties have access to Mary Avenue, and the City contends that Mary Avenue furnishes adequate access to plaintiffs' properties. Mary Avenue is primarily a railroad street, with the main line of the Cotton Belt Railroad running down the center, and with 2 switch tracks on each side. The record reflects that in order to load or unload goods in and out of plaintiffs' building from Mary Avenue, it is necessary to block the main line of the Cotton Belt Railroad.
This Court and our Supreme Court have considered the problem presented in DuPuy v. City of Waco, Tex., 396 S.W.2d 103, and in Archenhold Auto Supply Co. v. City of Waco, Tex., 396 S.W.2d 111. In such cases the rule is laid down that a physical taking of the property is not required under Article I, Sec. 17 of the Constitution of Texas to entitle the owner to...
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Taub v. City of Deer Park
...the City contends, when access is reasonable, rather than naturally or substantially impaired. See City of Waco v. Texland Corp., 425 S.W.2d 374, 376 (Tex.Civ.App.--Waco 1968), aff'd, 446 S.W.2d 1 (Tex.1969). In this case, the remainder tracts still have access to public streets. Finally, t......
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City of Waco v. Texland Corp.
...was damaged $6,000.00. The trial court judgment for Texland and Kelly in these amounts was affirmed by the Court of Civil Appeals. 425 S.W.2d 374. We agree that these properties have been damaged for a public use under Section 17 of Article 1 of the Constitution of Texas, Vernon's Ann.St., ......