City of Wichita Falls v. Thomas

• Decision Date: 25 April 1975
• Docket Number: No. 17570,17570
• Citation: 523 S.W.2d 312
• Parties: CITY OF WICHITA FALLS, Texas, Appellant, v. Maggie THOMAS, Appellee.
• Court: Texas Court of Appeals

Page 312

523 S.W.2d 312

CITY OF WICHITA FALLS, Texas, Appellant, v. Maggie THOMAS, Appellee.

No. 17570.

Court of Civil Appeals of Texas Fort Worth.

April 25, 1975.

Rehearing Denied May 30, 1975.

H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant.

Fillmore, Lambert, Farabee & Purtle and Larry Lambert, Wichita Falls, for appellee.

OPINION

SPURLOCK, Justice.

The City of Wichita Falls, by ordinance, assessed a paving lien against plaintiff's property for street improvements on the theory that such property was abutting property to Collard Street which the City sought to improve. Maggie Thomas, through her guardian, appealed this assessment to the District Court.

The plaintiff asserts that the street sought to be improved does not abut upon her property and therefore the paving assessment is void.

The case was tried before the court resulting in a judgment that declared the paving assessment void as being an attempted assessment against non-abutting property.

The City asserts that a triangular strip of land between the improved street and plaintiff's property is owned by the City, is a part of the street right-of-way, and is therefore abutting property.

We affirm.

The following plat will be of assistance in understanding the situation and contentions of the parties:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Maggie Thomas is the owner of a tract out of Block 5 of the J. A. Scott Survey in Wichita Falls. In 1938 the City purchased certain tracts out of this survey to construct a street. This included property out of Block 6, east of the Thomas tract. A dirt and gravel street (known as Collard Street) was then built which at its closest point was more than 40 feet from the Thomas property. The land between Collard Street and the Thomas property remained vacant and unused.

In 1973 the City proposed to improve Collard Street with a hard surface, curb, and gutter. The assessments here involved grew out of that program.

The improvement was designed to follow generally the existing Collard Street. The right-of-way was 50 feet wide and the width of the improvement from curb to curb was 30 feet. In the northwest corner of Block 6, in the vicinity of the Thomas tract, there is a triangular tract of land about 220 feet long. The Thomas tract abuts on 165 feet of this triangular vacant strip. This strip forms a buffer between the Thomas property and Collard Street. The part of this intervening strip adjacent to the Thomas tract in 52 feet wide at the north end and 25 feet in the south end and the distance from the north to the south end of the side adjacent to the Thomas tract is 165 feet.

There is no testimony that such vacant strip between the Thomas tract and the 50 feet right-of-way of Collard Street has ever been used for street purposes.

The Director of Public Works for the City was the only witness. He testified in effect that said triangular tract would not be used in connection with the Collard Street improvements, it was nothing more than an adjacent right-of-way, it would be highly speculative as to what improvements might be done at a future date, and it would be held for future improvements, if same ever became necessary. At least this was the present plan.

The City's attempted assessment was brought under the authority of Article 1105b, Section 6, Vernon's Ann.Civ.St., which provides in part as follows:

'. . . the governing body of any city shall have power by ordinance To assess all the cost of constructing, reconstructing, repairing, and realigning, curbs, gutters, and sidewalks, and not exceeding nine-tenths of the estimated cost of such improvements, exclusive of curbs, gutters, and sidewalks, Against property abutting upon the highway or portion thereof ordered to be improved, and against the owners of such property, . . ..' (Emphasis ours.) It is significant that the statute uses the term 'improved.'

The trial court found that under these facts the Thomas property was not 'abutting property' to the Collard Street improvement.

In the case of State v. Fuller, 407 S.W.2d 215 (Tex.Sup., 1966) the term 'abutting owner' was defined as follows:

'The term 'abutting owner,' when used in relation to highways, ordinarily refers to one whose land actually adjoins the way, although it is sometimes used loosely without implying more than a close proximity. See Black's Law Dictionary, 3rd ed. 1944; 25 Am.Jur. Highways § 153.'

The cases analyzed below have addressed themselves to the issue of what constitutes 'abutting property.'

In the case of Municipal Investment Corporation v. Triplett, 371 S .W.2d 124 (Amarillo, Tex.Civ.App., 1963, ref., n.r.e.) an old state highway adjoined the Triplett land. A new highway was constructed using a part of the old highway right-of-way. This left a strip of land varying in width from 300 feet to 80 feet and which was 420 feet long, constituting a part of the old highway, separating the Triplett property from the new highway. There were 'lay-down curbs' permitting automobiles to be driven from the Triplett property to the new highway. There was an inference that this strip was public land but had not been maintained since 1958 and was not being used as a roadway. The evidence was clear that the strip of land was not used as a public way even though it was owned by the state, county or city.

That court speaking through Chief Justice Denton held that, 'The Triplett land abuts the vacant strip and the vacant strip abuts the paving improvement. This leads to the inevitable conclusion the Triplett land does not abut the paving improvement. We are therefore the opinion the Triplett property does not constitute abutting property within the meaning...