Galveston City Surf Bathing Co. v. Heidenheimer

• Decision Date: 25 March 1885
• Docket Number: Case No. 2032.
• Citation: 63 Tex. 559
• Parties: GALVESTON CITY SURF BATHING CO. v. S. HEIDENHEIMER ET AL.
• Court: Texas Supreme Court

63 Tex. 559

GALVESTON CITY SURF BATHING CO.

v.S. HEIDENHEIMER ET AL.

Case No. 2032.

Supreme Court of Texas.

Mar. 25, 1885.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

In July, 1881, the city council of Galveston gave its consent that John Bailey use and occupy exclusively the shore and surf of the gulf, between Tenth and Thirtieth streets, for the purpose of constructing thereon public bath houses, and to use the same for the period of ten years. The appellant sued, alleging that it was the assignee of John Bailey and succeeded to all his rights under the lease, which was fully set forth. The consideration of the lease was alleged to be the expense and the risk to be incurred by the lessees on account of the experimental nature of the enterprise, as it was uncertain whether buildings could be erected upon piling in the water and withstand the force of winds and waves; and also the greater pleasure and convenience of bathers, who had prior thereto been restricted to a less desirable use of bath houses upon the sands. The city reserved a control over the lessee and the subject of the lease by prescribing that the beach drive, which was a public highway, should in no way be obstructed. The mayor of the city executed an instrument which was in effect an attempt to lease the territory, viz.: The flats on the south side of the city, under water, between Tenth and Thirtieth streets, and the right to wharf out from the fast land. The plaintiff claimed as assignee of the lease the sole authority to build and operate bath houses as a convenience for bathers over the surf within the limits and for the period above named. It proceeded to sink piling in the sand below ordinary low water mark, and in 1881 constructed two large bath houses with the approaches leading from the shore, which were opened to the public in 1882, a small charge being made for their use.

In the spring of 1883 plaintiff followed up its work by the construction of another building and other improvements, without in any way interfering with the public highway of the beach.

Defendants, although informed of plaintiff's lease and right to the exclusive use and possession of said flats so far as building and operating bath houses within the bounds mentioned was concerned, and without the consent of plaintiff, or the permission of the city, or any other authority, proceeded to construct buildings within the boundaries assigned to plaintiff, and within one hundred yards of plaintiff's improvements.

It was averred that defendants did not own or control the ground or flats upon which their building was placed, but that the same was in the control and jurisdiction of the city, except in so far as the right of temporary occupancy had been ceded to plaintiff.

The petition asked for an injunction to restrain defendants from proceeding with the construction of their building or wharf and from any further trespass upon plaintiff's rights. It showed that ample space could be found, within the corporate limits, either east of Tenth street or west of Thirtieth street, upon which coast, with proper authority, defendants might erect their piers and wharves.

Plaintiff alleged that great injury would be done it by depriving it of the emoluments which otherwise would have resulted to it as the fruits of its work; that many of defendants were insolvent, and that the damages likely to be sustained were difficult of estimation.

A supplemental petition was filed December 24, 1833, setting forth more specifically the trespass of defendants and the damages resulting therefrom to plaintiff.

The court sustained defendants' general and special demurrer to the petition and dismissed the suit.

James B. Stubbs, for appellant, cited: 1 Dill. Mun. Corp., secs. 106, 116; Yates v. Milwaukee, 10 Wall., 504;Hudson v. Cuero, L. & E. Co., 47 Tex., 56;Barney v. Keokuk, 94 U. S., 324;Galveston v. Menard, 23 Tex., 349;Thornton v. Grant, 10 R. I., 477;Atlee v. Packet Co., 21 Wall., 392-3.

Wheeler & Rhodes, for appellee, cited: Leonard v. Canton, 35 Miss., 189;Wallace v. San Jose, 29 Cal., 180;Minturn v. Larne, 23 How., 435;15 Me., 237;Stover v. Freeman, 6 Mass., 439;Torchermacher v. Thompson, 18 Cal., 21;Martin v. O'Brien, 34 Miss., 21;City of Galveston v. Menard, 23 Tex., 349;Commonwealth v. Charleston, 1 Pick. (Mass.), 180;Certelyn v. Van Brandt, 2 Johns., 362;31 Me., 134;Niles v. Patch, 13 Gray (Mass.), 257; Middleton v. Prichard, 3 Scam. (Ill.), 510; East Haven v. Hemingway, 7 Conn., 186;Canal Commissioners v. The People, 5 Wend., 423; Wheeler v. Spinola, 54 N. Y. (9 Sick.), 377.

WATTS, J. COM. APP.

This appeal involves the question as to the power of the council of the city of Galveston to grant exclusive rights to the shore and lands covered by the waters of the Gulf of Mexico adjoining the city, and commonly known as the surf.

The limits of the city along the gulf front are defined by the charter as follows: “That the limits of said city shall embrace so much of Galveston Island from the point thereof on the east to Fifty-sixth street, or include the league and labor of land known as the Menard grant.”

This grant to Menard, to which reference is made in the charter, bore date January 25, 1838, and was made in pursuance of an act of the congress of the republic of Texas, passed December 9, 1836. Paschal's Digest, art. 4248, etc.

The description contained in the grant to Menard is as follows: “Beginning at the northeast corner of lot No. ten (10), in section No. one (1), as represented in the plat of the survey of the Island of Galveston made by R. C. Trimble and William Lindsey, under direction of the secretary of the treasury, and running thence due north one hundred and fifty varas to a stake; thence eastwardly with the channel of the harbor in the bay of Galveston, and with the general course of said island, at the distance of at least one...