Gray v. S. T. Woodring Lumber Co.

• Decision Date: 19 May 1917
• Docket Number: (No. 8758.)
• Citation: 197 S.W. 231
• Parties: GRAY v. S. T. WOODRING LUMBER CO. et al.
• Court: Texas Court of Appeals

197 S.W. 231

GRAY v. S. T. WOODRING LUMBER CO. et al.

(No. 8758.)

Court of Civil Appeals of Texas. Ft. Worth.

May 19, 1917.

Rehearing Denied June 23, 1917.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Suit by W. J. Gray against the S. T. Woodring Lumber Company and others. From the decree rendered, complainant appeals. Affirmed in part, and in part reversed and remanded.

H. P. Brown, Warren & Russell, and S. C. Padelford, all of Cleburne, for appellant. Walker & Baker and W. E. Myers, all of Cleburne, for appellees.

BUCK, J.

W. J. Gray filed suit in the district court of Johnson county against the S. T. Woodring Lumber Company, a corporation, and the city of Cleburne, represented by its council, alleging that he was the owner of certain lots in the city of Cleburne; that said lots were located near the public square, and had on them a two-story building used as a hotel, and other improvements; that prior to February 17, 1917, there existed and was in force an ordinance including the entire block in which plaintiff's lots were located within the fire limits, and prohibiting all owners of lots within said block from erecting any buildings except such as were constructed of brick, concrete, or stone, or a combination thereof, or from moving thereon buildings not so constructed; that on said last-named date the defendant lumber company purchased the south one-half of said block, and entered into possession thereof with the purpose of operating thereon a lumber yard; that just prior to said purchase, the said lumber company—

"by and through certain evilly disposed persons, and for the private and individual use and benefit of the defendant, the said S. T. Woodring Lumber Company, applied to the other defendants, sitting as the common council of the city of Cleburne, for the purpose of changing the said ordinance fixing the fire limits of said city of Cleburne, so that the private property of the said defendant S. T. Woodring Lumber Company would be exempted from said fire limits and obligations placed upon those within said fire limits, and would be placed without said fire limits, and that the said defendant the city of Cleburne, by and through its common council, as alleged above, for the purpose of accommodating the said defendant S. T. Woodring Lumber Company * * * repealed that portion of the ordinance of the city of Cleburne fixing the fire limits as alleged above and excluded the south portion of said block No. 10 from within said limits."

It was further alleged that the passing of said amended ordinance was effected for no public purpose, but for the purpose of injuring plaintiff, and of enabling the lumber company to erect other wooden buildings, nearer and closer to the buildings of the plaintiff, thereby rendering plaintiff's buildings more liable to fire hazard. It was alleged that the ordinance as passed was discriminatory, and a writ of injunction was sought to restrain the enforcement of said ordinance by the city of Cleburne and the erection of wooden buildings on the south half of said block by the lumber company.

After general demurrer and special exceptions, the defendants, the lumber company and the city of Cleburne, answered in separate pleadings, denying that any improper motives had actuated the council of the city of Cleburne in passing the ordinance and denying that the lumber company had conspired with the members of said council to secure the passage of said ordinance, and denying that the enforcement of the ordinance would increase the fire hazard of the plaintiff, or subject his property to an increased rate of insurance. It was further pleaded that the city of Cleburne was specially authorized by the statutes of this state to locate and establish the fire limits of the city of Cleburne and to modify or alter the same at its discretion, and that the charter of the city of Cleburne specially conferred similar powers upon the council, and that the discretion of the council in so establishing, modifying, or altering the fire limits was not subject to the control of the courts, or to an investigation or attack on the ground that the ordinance might be discriminatory or unreasonable.

The lumber company specially denied that it had commenced, or was about to commence, the erection of wooden sheds or structures, or contemplated the erection of such structures on its lot further north than the original sheds thereon, but that, on the contrary, the sheds it was then erecting were further south than the original sheds, and more than 30 feet from the north line of its property. It further alleged that it was placing a roadway or driveway on the north line of its lot along the south line of plaintiff's lot, and that the same would be kept free from buildings or other structures, and would in no wise interfere with the plaintiff's property, depreciate its value, or increase the fire hazard or insurance rate, etc. It further alleged that the hotel building owned by the plaintiff was situated on the north end of his lot, and more than 30 feet from his south line, and that other improvements on his property consisted of worn-out and dilapidated sheds, horse stalls, barns, etc., all composed of wood, and very unsightly, and that the same constituted a constant and definite fire menace to the whole neighborhood. It further alleged that the defendant lumber company was proposing to conduct a large retail lumber business on its lot, and that the same would draw trade to that block and the surrounding blocks and prove very beneficial to persons engaged in business in that neighborhood. Attached to its sworn answer were affidavits from R. E. Pitts and C. H. Warren, both engaged in the fire insurance business in Cleburne, stating that the fire hazard of plaintiff's property would not be increased or the insurance rates raised by the erection of the new sheds on defendant lumber company's property.

Defendant city of Cleburne answered, adopting, in part, the answer of the lumber company, and further averring the ordinance in question had been duly and legally passed by the city council of said city, and that in its passage said council had exercised the broadest discretion, looking alone to the public good and welfare of the inhabitants of said city; that said ordinance was duly and legally adopted in the mode and manner provided by law and under the authority given said city in article 15 of its charter.

Plaintiff by supplemental petition demurred generally and specially to defendant lumber company's answer, and in a general way denied the allegations contained in said answer, and specially alleged that, though defendant had removed its sheds further south from plaintiff's property, it was using said property for storing highly combustible matter and material, consisting of shingles, etc., and that the storing of such combustible material near to plaintiff's property would increase its fire hazard. He further admitted that the wooden sheds, horse stalls, etc., on the south end of his lot were somewhat dilapidated, but stated that he had been desirous of improving the same, and had applied to the mayor of the city of Cleburne for the privilege to improve the same with material other than brick or such as would be fireproof, and had been denied such privilege.

Perhaps sufficient pleadings have been noted to meet the requirements of the discussion hereinafter to follow, though the pleadings, especially of the plaintiff, were rather voluminous.

The cause was heard by the court in chambers, being apparently submitted on the pleadings and accompanying affidavits alone, and the court granted an injunction, restraining the lumber company "from permanently storing or keeping any lumber, shingles, or inflammable material of any character in the rear of the plaintiff's lots within 25 feet of his south line." In all other respects the injunction sought was denied. B...