Dipp v. Rio Grande Produce, Inc.
| Decision Date | 16 December 1959 |
| Docket Number | No. 5363,5363 |
| Parties | Mike DIPP, Appellant, v. RIO GRANDE PRODUCE, INC., Appellee. |
| Court | Texas Court of Appeals |
Andress, Lipscomb, Peticolas & Fisk, El Paso, for appellant.
Malcom McGregor, El Paso, for appellee.
This was a suit by the appellee brought against the appellant for a mandatory injunction ordering the appellant to remove certain alleged obstructions in an alley located in El Paso, Texas. The appellee filed its motion for summary judgment, which was sustained by the trial court. Thereafter, the appellant made a motion for new trial based upon newly discovered evidence and carried forward into said motion an additional assignment of error, all of which was overruled by the trial court, and this appeal is taken from the two actions of the trial court; first, in sustaining the motion for summary judgment, and second, in failing to grant the appellant's motion for new trial.
This controversy involves a loading dock constructed across the alley in Block 145, Campbell Addition, in the City of El Paso. The alley in question was dedicated and accepted by the City in 1896. In April of 1943, the City passed an ordinance closing the north end of the alley 'for the length of time that said premises are occupied by the U. S.' Section 2 then recites: 'When the United States of America ceases to occupy said premise as a warehouse, then the portion of said alley closed by this ordinance will again be opened.' The United States Army built a loading dock across the closed portion of the alley, which facilities were vacated by them in about 1945. Subsequently, defendant-appellant acquired the property and continued to use the loading dock for some thirteen or more years. Appellee acquired a leasehold estate in four lots abutting on the alley in 1957 and, thereafter, brought this suit, claiming that the loading dock was an obstruction causing it great and irreparable damage and inconvenience, in that it was denied ingress and egress to that end of the alley, which was the north end of said alley.
The trial court granted a summary judgment ordering, through a mandatory injunction, the appellant to remove the obstruction.
Appellant alleges there was an issue of fact before the court; that he had not placed the obstruction and should not have to remove it; that plaintiff had failed to show any special or material injury; that plaintiff was not an abutting owner; and, lastly, that the trial court erred in overruling his motion for new trial on the ground of newly discovered evidence.
We will discuss the first, second, third and fifth points together, as they seem to be related.
We believe the trial court acted correctly in granting the summary judgment, for the reason that there is no doubt but what this was a public alley; that it was closed by the loading dock which appellant had used, was using, and wished to continue to use. As a leaseholder, we believe that appellee had the same rights as regards this controversy as an actual owner would have. We believe it was sufficient for him to show that he was an abutting user by virtue of...
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Centex Corp. v. Dalton
...Richman Trusts v. Kutner, 504 S.W.2d 539, 541 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.); Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700, 702 (Tex.Civ.App.--El Paso 1959, writ ref'd n.r.e.). The trial court correctly awarded Dalton damages in the amount of The judgment of the trial co......
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Dorbandt v. Bailey
...the hearing of the motion for summary judgment. Rule 166--A Texas Rules of Civil Procedure; Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700, 702 (Tex.Civ.App., El Paso, 1959, writ ref. n.r.e.) and cases cited therein; Womack v. I. & H. Development Company, Inc., 433 S.W.2d 937, 940 (Tex.Ci......
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...Mutual of Nueces, Inc., 353 S.W.2d 882 (Tex.Civ.App.--San Antonio 1962, writ ref'd n.r.e.); Dipp v. Rio Grande Produce, Inc., 330 S.W.2d 700 (Tex.Cvi.App.--El Paso 1959, writ ref'd n.r.e.); Oaxaca v. Lowman, 297 S.W.2d 729 (Tex.Civ.App.--El Paso 1956, writ ref'd n.r.e.); Rule 166--A(c), Tex......
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Tex. Auto Salvage, Inc. v. D D Ramirez, Inc.
...a nuisance creates inconvenience or danger for those near the nuisance, that adverse impact is at least some evidence of special injury." In Dipp, the appeals affirmed a summary judgment commanding the appellant to remove obstructions from an alley. Id. at 701. The court noted that the plai......