Fox Development Company v. City of San Antonio, 14908

• Decision Date: 21 October 1970
• Docket Number: No. 14908,14908
• Citation: 459 S.W.2d 670
• Parties: FOX DEVELOPMENT COMPANY, Inc., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
• Court: Texas Court of Appeals

Page 670

459 S.W.2d 670

FOX DEVELOPMENT COMPANY, Inc., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.

No. 14908.

Court of Civil Appeals of Texas,

San Antonio.

Oct. 21, 1970.

Rehearing Denied Nov. 18, 1970.

Gray, Gardner, Robison & Cobb, San Antonio, for appellant.

Howard C. Walker, Crawford B. Reeder, San Antonio, for appellee.

BARROW, Chief Justice.

Appellant, a Texas Corporation, appeals from a take-nothing judgment in its suit for writ of mandamus or mandatory injunction to order appellee, City Public Service Board, a municipal board operating the electric and gas system of appellee, City of San Antonio, to furnish gas and electric service to land outside the City of San Antonio upon which appellant proposes to develop a subdivision. CPSB refuses to furnish such service until the plat is approved by the City Planning Commission as required by Article 974a, § 8, Vernon's Annotated Civil Statutes.

The land is within five miles of the boundary limits of the City as established by Ordinance #32619, which was passed on July 30, 1964, whereby the City annexed .11 square miles of land with dimensions of 116.16 feet in width by five miles in length and being the right-of-way of U.S. Highway #281 from the boundary of the City out some five miles. Appellant urges by this collateral attack that said ordinance is void primarily because such annexed strip of land was not adjacent to the City. Article 1175, Subd. 2, V.A.C.S., expressly confers power on a Home Rule city, such as San Antonio, 'to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city.'

The land annexed by Ordinance #32619 adjoins the prior southern boundary of City. It extends for a distance of five miles as authorized by Article 970a, § 7, V.A.C.S. It does not lie in or anywhere near any other municipality. In State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957), the Supreme Court, in rejecting a contention that the annexed land there in question was uninhabitated and unfit for habitation or other municipal purpose, held that the only limitation fixed by the Legislature on the power of a city to annex additional territory is that the territory shall be adjacent to the city and not included within the boundaries of another municipality. See also City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928 (1943).

It is a settled rule that adjacency is a law question. City of Irving v. Dallas County Flood Control District, 383 S.W.2d 571 (Tex.1964). In State ex rel. Pan American Production Co. v. Texas City, supra, it was held that the Legislature used the word 'adjacent' in the sense of being 'contiguous' and 'in the neighborhood of or in the vicinity of' a municipality. See also City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325 (Tex.1969).

The validity of annexation ordinances whereby narrow strips or stems of land were annexed have been challenged and upheld in prior decisions. In City of Wichita Falls v. Bowen, 143 Tex. 45, 182 S.W.2d 695 (1944), a collateral attack was made upon an ordinance wherein it was urged that a tract containing several hundred acres was not adjacent to the City of Wichita Falls in that it was connected to the city by a stem extending along State Highway No. 70 some three to four miles. It was held that the fact the land annexed was only joined to the city by a narrow neck could not render the ordinance void. The Court said: 'Neither the statute, Article 1175, supra, nor the charter of the City, defines or provides any length, width, shape, or amount of area of land that the City may annex. It must follow, therefore, that any attack on this annexation ordinance, on account of...