DuPuy v. City of Waco, A-10644

Decision Date13 October 1965
Docket NumberNo. A-10644,A-10644
Citation396 S.W.2d 103
PartiesLeslie C. DuPUY, Jr., Petitioner, v. The CITY OF WACO, Respondent.
CourtTexas Supreme Court

Naman, Howell, Smith & Chase, Waco, for petitioner.

Thomas R. Hunter, City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for respondent.

STEAKLEY, Justice.

The City of Waco constructed a viaduct on South 17th Street in 1962 to improve the movement of vehicular traffic in the city. No property of Petitioner, Leslie C. DuPuy, was physically appropriated by the City but access to his property was impaired by the viaduct. The question we are called upon to decide in this suit by DuPuy against the City is whether damages for the diminishment in value of Petitioner's property resulting from the 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 trial court rendered judgment for the Petitioner upon the basis of favorable jury findings. The Court of Civil Appeals, as did the jury upon trial, found that the reasonable market value of the property has been substantially damaged for a public use. However, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for the City upon the holding that the construction of the viaduct was a reasonable exercise of the police power, wherefore Petitioner had no cause of action since there was neither a physical taking nor a complete loss of access. City of Waco v. DuPuy, 386 S.W.2d 192.

The location of the property of Petitioner in relation to the viaduct and the surrounding streets is depicted on the accompanying schematic diagram. Prior to the construction of the viaduct, DuPuy fronted on South 17th Street and sided on an alley connecting with Franklin Avenue. The viaduct elevated 17th Street above the property of DuPuy and left him access to the front by a way under the viaduct between the supporting columns and dead-ending at DuPuy's property.


It is the position of Respondent, City of Waco, by its counter points, and of the attorneys for other cities filling amicus curiae briefs, that the City is not liable for the limitation of access to Petitioner's property by the construction of the viaduct because such was incidental to a reasonable exercise of the policy power. The Attorney General of Texas, likewise by amicus curiae brief, asserts that without regard to any distinction between an exercise of the police power and the power of eminent domain, the damage of Petitioner is damnum absque injuria because there has been no invasion of any legal rights of Petitioner. The Attorney General argues that Petitioner has no damage because he still has complete access to the system of public roads and summarizes his position in saying that 'The access is less convenient and the loss of traffic flow by the front door is apparent but it is settled that both the real elements of loss to commercial value are damnum absque injuria.'

The problem is a recurring one of great difficulty and there is much literature on the subject. 1 The comment of this Court in City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958), is timely:

'The lack of uniformity among the authorities seems to be no less apparent now than it was in 1906 when it was observed in Sauer v. City of New York, 206 U.S. 536, 27 S.Ct. 686, 690, 51 L.Ed. 1176, that:

'* * * The right of an owner of land abutting on public highways has been a fruitful source of litigation in the courts of all of the states, and the decisions have been conflicting, and often in the same state irreconcilable in principle. The courts have modified or overruled their own decisions, and each state has in the end fixed and limited, by legislation or judicial decision, the rights of abutting owners in accordance with its own view of the law and public policy. * * *"

The demands of progress are inexorable and public improvements should not be discouraged; but just as compelling is the principle that private property rights are to be protected with all citizens sharing equally in the cost of progress. It was said in Brewster v. City of Forney, 223 S.W. 175 (Tex.Comm.App.1920):

'The Constitution of Texas and the decisions of her courts reveal a zealous regard for the rights of the individual citizen. Not only will they not permit his property to be 'taken' for a public use without compensation, but will not permit it to be damaged unless the citizen is compensated to the extent of such damage. To hold otherwise would be to put upon one citizen a burden which should rest upon the aggregate citizenship, as the direct beneficiary of the public work, the construction and operation of which has damaged the property of one citizen.'

It was recognized by this Court in Chicago, R. I. & G. Ry. Co. v. Tarrant County Water Control and Improvement District No. 1, 123 Tex. 432, 73 S.W.2d 55 (1934), that our Constitution and statutes have been construed generally to authorize the recovery of compensation not only for property actually taken under the power of eminent domain, but for property damaged as well; that compensation is not required to be paid in all cases of damage to property occasioned by the exercise of the police power; and that our decisions permit recovery by the citizen for damages consequent upon changing street and highway grades.

This Court more recently upheld a recovery of damages under Article I, Sec. 17, of the Constitution in an inverse condemnation proceeding without attempting a distinction between the power of eminent domain and an exercise of the police power. Brazos River Authority v. City of Graham, 163 Tex. 167, 169, 354 S.W.2d 99 (1962). See in this connection San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex. 1963). As graphically expressed in Brazos River, our refusal to compartmentalize an exercise of sovereignty as either police power of eminent domain for the resolution of problems arising under Article I, Sec. 17, of the Constitution rests upon the manifest illusoriness of distinctions between them. And here, as in Brazos River, the property in question was not being used to the detriment of the public in any respect and has not been subjected to any type of regulation. One or the other of these elements is generally considered to be an essential characteristic of an exercise of the police power. City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958); Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934); Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387 (1921); Connor v. City of University Park, 142 S.W.2d 706 (Tex.Civ.App.1940, writ ref.). 2 Moreover, the viaduct was constructed for a public use, the necessary consequence of which was the causing of a property loss to Petitioner not common to the general public. These elements are generally considered to be supportive of special damages in law whether or not termed an exercise of the power of eminent domain. State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Fort Worth Improvement District No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 48 L.R.A.,N.S., 994 (1913); Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885); Gulf, C. & S. F. R. R. Co. v. Eddins, 60 Tex. 656 (1884); Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053 (1916); cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) and City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 (1940). 3

It is settled that a direct physical invasion of property is not required under the present provisions of Article I, Sec. 17, of the Constitution of Texas to entitle an owner to compensation. McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co., 104 Tex. 8, 133 S.W. 247, 36 L.R.A., N.S., 662 (1911); Gulf, C. & S. F. Ry. Co. v. Fuller, 63 Tex. 467 (1885); Gulf, C. & S. F. R. R. Co. v. Eddins, 60 Tex. 656 (1884) It was the injustice of requiring an actual taking which explains the inclusion for the first time in the Constitution of 1876 of the requirement that compensation be paid for the damaging of property for public use. Judge Gaines wrote for this Court in Trinity & S. Ry. Co. v. Meadows, 73 Tex. 32, 11 S.W. 145, 3 L.R.A. 565 (1889): 'The insertion of the words 'damaged or destroyed' in the section quoted was doubtless intended to obviate this question, and to afford protection to the owner of property, by allowing him compensation, when by the construction of a public work his property was directly damaged or destroyed, although no part of it was actually appropriated.' See also State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941), and Gainesville, H. & W. R. Co. v. Hall, 78 Tex. 169, 14 S.W. 259, 9 L.R.A. 298 (1890). In the exercise of the power to take or appropriate private property for public use, the state, counties and other subdivisions of this state, railroads and corporations to which the power of eminent domain has been delegated, are in the same position and are governed by the same rule. Hale, supra. The basic concept of Article I, Sec. 17, in its requirement for the payment of compensation was expressed by this Court in Hale in terms of private property being subjected to a perpetual servitude for the benefit of the public entitling the owner to compensation for his damage.

It is the settled rule in this state that an abutting property owner possesses an easement of access which is a property right; that this easement is not limited to a right of access to the system of public roads; and that diminishment in the value of property resulting from a loss of access constitutes damage. Powell v. Houston & T. C. R. Co., 104 Tex....

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