Cone v. City of Lubbock

Citation431 S.W.2d 639
Decision Date24 June 1968
Docket NumberNo. 7793,7793
PartiesW. L. CONE, Appellant, v. CITY OF LUBBOCK et al., Appellees. . Amarillo
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Andress, Woodgate & Hartt, Dallas, Wm. Andress, Jr., Dallas, of counsel, for appellant.

Fred O. Senter, Jr., and George A. Staples, Jr., and A. W. Salyars, Lubbock, for appellees.

CHAPMAN, Justice.

This is an appeal from a judgment rendered for the City of Lubbock notwithstanding the verdict. Appellant, W. L. Cone, had since 1927 owned the land out which use the alleged cause of action filed by the City of Lubbock developed. It is part of a low basin area receiving run-off waters, and was such even before annexed to the City of Lubbock in 1949. In 1951, the City enacted Chapter 16 of its original Lake Area Ordinance prohibiting the change of terrain in such area without approval of a cut-and-fill plan providing for adequate storm water storage after completion of any rearrangement of soil.

Mr. Cone sold 18,000 cubic yards of the soil from his basin before the controversy arose with the City, 5,850 cubic yards of which the City purchased and used in raising the level of and paving streets in the immediate vicinity. This substantially increased the water-holding capacity of his 10-acre tract and where it raised the level of the streets to which appellant's land was charged with a servitude to receive therefrom surface waters it obviously changed the natural flow of waters such as had theretofore existed.

In 1963, appellant initiated a program of removing soil from the rear of his tract and filling the street frontage to street level for the purpose of realizing an economic return on his property. The City secured a temporary injunction on May 6, 1963, upon allegations of Mr. Cone's failure to comply with the Lake Area Ordinance by securing a cut-and-fill plan and on assertions that he was interfering with the natural flow of waters and thereby endangering neighboring streets. In October, 1964, after a trial to the court on the merits and approximately 16 months after the temporary injunction was granted the court dissolved such injunction and denied the City any recovery. No appeal was perfected from that judgment.

As soon as appellant could secure financing after the injunction was dissolved he continued the same operation to rearrange his tract which he had been performing before the 1963 injunction was granted. The City officials watched his operation for three months without interference, then ten days before completion of his project it went to another district court in Lubbock and secured another temporary injunction. In an appeal to this Court, Cone v. City of Lubbock, 395 S.W.2d 651 (1965 Tex.Civ.App., n.r.e.), it was held that the issues before the court should be determined at a trial on the merits. In such subsequent trial the jury found that if appellant's earth moving activities since October, 1964, had been allowed to continue they would not have caused the streets involved to be flooded during and after heavy rains. There is evidence to support such findings and the City has not contested it on this appeal. The jury also found that $4,600.00 would compensate Mr. Cone for actual expenses incurred by reason of delay in completion of the work and that $1,000.00 a month would reasonably compensate him for loss of use of the property for the 24 months he would have had its use had he not been prevented from completing his fill operations by reason of the injunctions granted against him.

Following the City's motion for judgment n.o.v. the trial court rendered a judgment to the effect that the City was not liable in damages because it was acting in a governmental capacity, but enjoined any attempt to enforce Chapter 16 of the ordinances of the City against appellant; from attempting to enforce any other ordinances against him in a manner different from the manner in which it is enforced against other citizens of the City of Lubbock; from harassing and intimidating him and from interfering with his use of his property and his fill operations thereon, other than the receipt of waters through inlets to his lake area.

No cross point is raised by the City on the court's injunctive relief awarded Mr. Cone against it in attempting to enforce Chapter 16 of the Ordinances of the City against him. Cross action was filed by appellant against the City for damages for the period the injunctions required the land to remain unchanged and thereby subjected to public use without first making compensation, which he alleged is prohibited by Art. I, Sec. 17 of the Constitution of Texas, Vernon's Ann.St. Appellant also alleged discriminatory use of his property different to others within the City and denied the waters reaching his lands were the natural flow because of changes in grades, but are a concentrated flow caused by the City to which his lands are not subservient.

The pleadings of the City upon which the case was tried alleged the embankment Mr. Cone was building, which it was seeking to enjoin, had and would alter, contrary to the laws of the State, the natural condition of the established drainage water course and would cause the water therein to be concentrated in increased volume, on and over Plaintiff's streets 1 and will cause '* * * A large portion of said streets to be eroded and washed away and a large portion of Said streets will be overflowed and so soaked as to make them unpassable and unusable For public streets by the citizens of this City.' It further alleged that it '* * * owes a duty and responsibility to Its citizens * * * to see that conditions which will cause harm To the property owners and the public in any area of the City are not allowed to develop.'

In Paragraph II of its trial pleadings the City alleged Mr. Cone owned a parcel of land within the corporate limits of the City of Lubbock described as Tract 36, Suburban Homes Addition to the City. In Paragraph III it alleged such lands '* * * border on and lie adjacent to two public streets to-wit: Ave. A and 46th Street both of which are under the control and supervision of the plaintiff herein.'

The testimony shows Ave. A just described is a state highway running through the City but in Paragraph III of its pleadings the City alleges Ave. A and 46th Street are both under its control and supervision. Appellant in its pleadings admits the truthfulness of the City's Paragraphs II and III but neither in those paragraphs nor in any other pleadings are there any allegations that it was acting as the agent or arm of the State in discharge of the State's obligation to provide for the health, safety or general welfare of the public generally, or that it voluntarily assumed responsibilities in connection with Ave. A for the benefit of the public generally rather than for the benefit of its own citizens.

A simple and easy disposition could be made of this case in our court by holding the City in securing the injunctions which led to the damages the jury awarded Mr. Cone was acting in a governmental capacity, or was litigating a governmental activity, 2 and was thus immune from liability. We believe the case presents problems far more complicated and difficult than such an easy solution.

Ellis v. University Place, supra, holds that even though a zoning ordinance, as applied to petitioner's property, was determined to be unreasonable and unenforceable still the City had the right to litigate the question and while so doing it was acting in a governmental capacity. Zoning ordinances fall within the police power of municipalities, so the City there was litigating a governmental activity. To say that a City would be immune in litigating proprietary activity, even though it had no cause of action, would, in our opinion, be contrary to the Texas Supreme Court's declared policy of refusing to extend the doctrine of municipal immunity. City of Houston v. Shilling, 150 Tex. 387, 240 S.W.2d 1010, 26 A.L.R.2d 935 (1951); City of Austin v. Schmedes, 156 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680 (1955). It has also been held that: 'Those functions of a municipal corporation in its capacity as an agent of the state are strictly limited by the statutory provisions granting them. In the exercise of these functions the municipality is an arm of the sovereignty, and its powers are strictly construed.' City of Uvalde v. Uvalde Electric & Ice Co., 250 S.W. 140 (Tex.Comm.App., Sec. B, 1923). See also City of Fort Worth v. George, 108 S.W.2d 929 (Tex.Civ.App.-Fort Worth, 1937, writ ref'd) and Shilling, supra.

Our courts long ago established rules for determining whether a municipal activity is governmental or proprietary. As so truthfully stated in Shilling, supra: 'It is in the application of this rule (these rules) to a particular fact situation that the difficulty arises.'

Mr. Justice Calvert in a concurring opinion in City of Corsicana v . Wren, 159 Tex. 202, 317 S.W.2d 516, 522 (1958) stated the governmental and proprietary rules as follows:

'It is well settled that activities which are carried on by a municipality, pursuant to state requirement, in discharge of the state's obligation to provide for the health, safety or general welfare of the public generally, or which are voluntarily assumed for the benefit of the public generally rather than for the benefit of its own citizens, are performed in a governmental capacity and as a governmental function. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259; City of Fort Worth v. George, Tex.Civ.App., 108 S.W.2d 929, writ refused; Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879; 30--B Tex.Jur. 15, Municipal Corporations, § 639. On the other hand, it is equally well settled that all other municipal activities are carried on in a private corporate capacity and are proprietary functions. Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992; City of Houston v. Quinones, supra; City of Houston v....

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