Dallas Cotton Mills v. Industrial Co.

• Decision Date: 22 June 1927
• Docket Number: (No. 555-4038.)
• Citation: 296 S.W. 503
• Parties: DALLAS COTTON MILLS v. INDUSTRIAL CO. et al.
• Court: Texas Supreme Court

296 S.W. 503

DALLAS COTTON MILLS v. INDUSTRIAL CO. et al.

(No. 555-4038.)

Commission of Appeals of Texas, Section A.

June 22, 1927.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Dallas Cotton Mills against the Industrial Company and others. Judgment for defendants was on appeal affirmed by the Court of Civil Appeals (252 S. W. 821), and plaintiff brings error. Judgments of district court and Circuit Court of Appeals affirmed in part, and reversed in part, and rendered.

Coke & Coke, of Dallas, for plaintiff in error.

J. J. Collins and H. S. Grady, both of Dallas, for city of Dallas.

Seay, Seay, Malone & Lipscounb, of Dallas, for other defendants in error.

NICKELS, J.

The Dallas Cotton Mills, plaintiff in error, owns a block of land in the city of Dallas, bounded on all four sides by streets which furnish outlets through connecting highways to all portions of the city. Just north of this block and separated from it by Barnett street, which runs east and west, the defendant in error Industrial Company owns two blocks, and also owns two other blocks just north of these and separated from them by what is known as Dexter street—South Lamar street running north and south connects with Barnett street just north of the north boundary line of the block owned by plaintiff in error at or near its center, and separates the four lots owned by the Industrial Company, with two lying east and two west of South Lamar street.

The property of both Dallas Cotton Mills and the Industrial Company is a part of a tract of land formerly owned by the Dallas Cotton & Woolen Mills, a corporation, and was by said last-named corporation surveyed and platted into an addition to the city of Dallas, and a plat thereof, together with the dedication to the city of the streets and avenues shown thereon, was duly executed, acknowledged, and filed by it for record and recorded in the Deed Records of Dallas county on November 8, 1888. That part of South Lamar street which separated the blocks owned by the Industrial Company was shown on said plat, and both it and the Dallas Cotton Mills held and owned their respective properties by conveyances under said dedicator.

By its charter, authority was conferred on the city of Dallas "to lay out, establish, open, alter, widen, lower, raise, extend, grade, narrow, care for, pave, supervise, maintain, and improve streets, alleys, sidewalks, squares, parks, public places, and bridges, and to vacate and close the same * * * and to vacate and close private ways."

The city, through its board of commissioners, decided to change the course of South Lamar street by turning same diagonally across the two blocks east and connecting it with Cockrell avenue near the northeast corner of the block owned by the Dallas Cotton Mills. Cockrell avenue bounds the block of the Dallas Cotton Mills on its east, and lies practically parallel with Lamar street. Accordingly, an arrangement was made with the Industrial Company to secure from it by deed a right of way across its two lots in order to effect this change, in consideration of the city paying it $2,800 cash and vacating this portion of South Lamar street from the point of divergence to Burnett avenue, together with another street and alley running between and through the said blocks owned by the Industrial Company.

Dallas Cotton Mills presented to the district judge of the Sixty-Eighth judicial district its petition alleging that the city of Dallas and the Industrial Company, defendants in error, intended to and, unless restrained, would physically close and obstruct that portion of South Lamar street above shown. It set out its purchase of its block of ground in said platted and designated addition, and alleged that by virtue thereof it acquired and owned an easement of way over the portion of South Lamar street sought to be closed; that this easement was property; and that it could not be deprived thereof by defendants in error in the manner attempted, and prayed that the city of Dallas and the Industrial Company be restrained and enjoined from physically closing South Lamar street and thus putting an end to and absolutely destroying its easement therein. Writ of temporary injunction was granted as prayed for and the petition filed in the district court December 13, 1922.

Defendants in error then answered and filed their motions to dissolve the injunction order. The city pleaded its charter power as justification for the ordinance, asserted that in passing the ordinances it had done all that it intended to do or had power to do in respect to the vacation or closing of the portion of Lamar street in controversy, and denied that it intended to or would undertake physically to close the same. The Industrial Company pleaded its claim of right, in virtue of being the owner of all land abutting upon that portion of the street and consequently owner of the fee therein, and in view of passage of the ordinances, to take possession of the street and to close the same in fact. Upon hearing the injunction, order was dissolved. Dallas Cotton Mills appealed, and the order of dissolution was affirmed by the honorable Court of Civil Appeals. 252 S. W. 921. Writ of error was allowed upon assignments presenting ownership by Dallas Cotton Mills of an easement of way in that portion of Lamar street to which the vacation proceedings by the city relate and deprivation of that property without compensation and without due process of law, to prevent which injunctive relief is proper.

The right which Dallas Cotton Mills asserts is not that of a way ex necessitate, or one incident to abutment, or one belonging to mere citizenship and grounded in possible endurement of special injury. Hence the honorable Court of Civil Appeals considered and gave disposition to the case upon an irrelevant theory, and the authority cited by it has no proper application. We thus negative a claim based upon ownership of attiguous property merely because the parties have done so and because, in view of conclusions reached as to other matters, existence vel non of fact basis for such a right is immaterial.

The common source proprietor subdivided his land, and by instrument duly recorded defined boundaries for the various portions, and by dedication impressed upon the property now involved the character of a passageway. Dallas Cotton Mills and the Industrial Company bought with direct reference to this subdivisional and dedicatory plat. Acts of the parties,...