Fort Worth & D. C. Ry. Co. v. Ammons

• Decision Date: 01 November 1948
• Docket Number: No. 5897.,5897.
• Citation: Fort Worth & D. C. Ry. Co. v. Ammons, 215 S.W.2d 407 (Tex. App. 1948)
• Parties: FORT WORTH & D. C. RY. CO. et al. v. AMMONS et al.
• Court: Texas Court of Appeals

215 S.W.2d 407

FORT WORTH & D. C. RY. CO. et al. v. AMMONS et al.

No. 5897.

Court of Civil Appeals of Texas. Amarillo.

November 1, 1948.

Rehearing Denied December 6, 1948.

Appeal from District Court, Lubbock County; G. V. Pardue, Judge.

Suit for declaratory judgment by Alton J. Ammons and others against Fort Worth & Denver City Railway Company and another. The City of Lubbock intervened. From the judgment, the defendants appeal.

Reversed.

Klett, Bean, Evans & Justice, of Lubbock, and Seth Barwise, of Fort Worth, for appellants.

Lindsey, Smith & Brock and Robt. A. Sowder, all of Lubbock, for appellees.

LUMPKIN, Justice.

This appeal is from a judgment of the District Court of Lubbock County, Texas, in which the appellants, Forth Worth and Denver City Railway Company and Fort Worth & Denver South Plains Railway Company, are perpetually enjoined and restrained from extending an industrial spurtrack into a C district as designated by the Zoning Ordinance of the City of Lubbock, or from entering upon any construction or extension of their tracks without obtaining a permit from the City of Lubbock as required by the City's Building Code. The judgment declares that the Zoning Ordinance is a valid and constitutional ordinance, duly enacted by the City of Lubbock under authority of law; and that the Building Code is a valid and duly enacted ordinance of the City of Lubbock and is applicable to the appellants since the extension of a railway spur is construction within the meaning of the ordinance. The suit, in which this Declaratory Judgment was entered, was originated by the appellees, Alton J. Ammons and eighteen others whose property adjoins the appellants' right of way. From the court's judgment the appellants duly excepted and have perfected their appeal to this court.

A study of the zoning map of the City of Lubbock reveals that the appellants' tracks enter the city from the southeast and turn due north between Avenues G and F. At this point of turning a spur track continues from the main line in a southwesterly direction to approximately forty-five feet south of 29th Street. From this terminal the map shows that the appellants' right of way for the spur extends to 34th Street, thence south one half mile beyond the city's limits. There is no trackage laid on this last portion of the right of way. From the point of turning to the end of the rails, the spur line is within a J zone; however, that portion which lies between 31st and 34th Streets, and which contains no trackage, is within a C zone. This is the strip of land in controversy. The property immediately adjacent to this strip is owned by the appellees. Under the Zoning Ordinance a J zone is classified as industrial, while a C zone is set aside as residential. There is no business or industry along the strip; however, in the J, or industrial district, lying immediately north of the Summerhill and Flynn Place Additions, notably the Hufstedler Sub-division, there are located warehouses, and there is evidence of one business concern established south of 34th Street.

This strip between the Summerhill and Flynn Additions is about 54 feet wide. It was acquired by the appellants on May 27, 1927, by general warranty deed. At that time the two additions were not within the city limits and few houses were located in the area. It is bordered on the west by blocks 1 and 6 of the Summerhill Addition and on the east by blocks 5, 6, and 7 of the Flynn Place.

On March 13, 1941, the City of Lubbock passed a Zoning Ordinance which placed blocks 1 and 6 of the Summerhill Addition, the railroad property, and the entire Flynn Place in Zone C, thereby restricting this area to residential uses listed as one and two-family residences and apartment houses of limited heights. The appellees in their original petition allege that they relied upon the Zoning Ordinance in building their homes and improving their property; that the appellants, in violation of the ordinance, were preparing to extend their spur along the right of way described; and that such would depreciate the value of the appellees' property, and that this area would no longer be suitable for the uses for which it was restricted by the zoning ordinance. The action was brought under the provisions of the Uniform Declaratory Judgment Act, Article 2524—1, Vernon's Annotated Civil Statutes. While this suit was pending and before it had been called for trial, the appellants started laying track on the strip. The appellees filed an injunction suit which resulted in the trial court granting a temporary restraining order maintaining the status quo until the court could decide the matters presented in appellees' original petition. Afterwards the City of Lubbock intervened and adopted the appellees' pleadings. Trial was to the court without the intervention of a jury and resulted in the judgment heretofore mentioned.

In their first point of error the appellants attack the court's judgment on the theory that a municipality cannot pass a Zoning Ordinance to prevent a railroad from exercising its right of eminent domain; that the Legislature Act granting a railroad the power of eminent domain to take such property as it may deem necessary for public use is superior to a city ordinance which would nullify the act of the legislature.

Eminent Domain is one of the inalienable rights of sovereignty. It is the power to take private property for public use. However, it is to be distinguished from taxation and police authority, other distinct powers by which private property may be appropriated. More precisely, eminent domain is the right of the state, or of those to whom the power has been delegated, to condemn private property for public use, and to appropriate the ownership and possession of the property upon paying the owner a due compensation. 29. C.J.S., Eminent Domain, § 1, page 776.

Zoning Ordinances as enacted by home rule cities, are an exercise of the police power delegated to the cities by the state. It has been repeatedly held that the police power of the state may be delegated for appropriate purposes to the municipalities and that such power may be validly exercised by the municipalities for the protection of the health, safety, comfort, and welfare of the public. City of New Braunfels et al. v. Waldschmidt et al., 109 Tex. 302, 207 S.W. 303; Spann v. City of Dallas et al., 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387. A city in exercising the police power delegated to it is exercising the powers of the state government within the limits of the city. Peck v. City of Austin, 22 Tex. 261, 73 Am.Dec. 261. Articles 1011a through 1011j, Vernon's Annotated Civil Statutes, are Acts of the Legislature authorizing the...