Halsell v. Ferguson

• Decision Date: 10 April 1918
• Docket Number: (No. 2870.)
• Parties: HALSELL et al. v. FERGUSON et al.
• Court: Texas Supreme Court

202 S.W. 317

HALSELL et al. v. FERGUSON et al.

(No. 2870.)

Supreme Court of Texas.

April 10, 1918.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Hugh W. Ferguson and others against J. W. Halsell and others. On questions certified from the Court of Civil Appeals, on appeal from a decree for the complainants. Questions answered.

Adams & Stennis, of Dallas, for appellants. Cecil L. Simpson, of Dallas, for appellees.

GREENWOOD, J.

Questions certified from the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, on an appeal from the district court of Dallas county. The certificate of the honorable court of Civil Appeals is as follows:

This is an appeal from an order of the district court of Dallas county, Tex., directing the issuance of a temporary writ of injunction as prayed for by the plaintiffs below, appellees here, restraining the appellants, their agents and representatives, from building a house on lots 5 and 6 in block 668 of the city of Dallas, Dallas county, Tex., except in so far as the same may conform to the frontage of said lots on Harry avenue, as originally platted, in said city. The appellees allege in their petition, in substance, that they are the owners of part of lot No. 12 in block No. 27, according to the official map of said city, which is situated at the southeast corner of Harry avenue and Annex avenue; that said lot fronts 67½ feet on Harry avenue and runs back along Annex avenue 200 feet, and is in the residence section of the city of Dallas; that appellant J. W. Halsell is the owner of lots Nos. 5 and 6 in block 668 of said city of Dallas, which adjoin each other and front on Harry avenue, and run back along Annex avenue and California avenue 150 feet; that said lots 5 and 6 are located west and immediately across Annex avenue from appellees' said lot; that said Halsell has contracted to sell or is about to sell or has sold said lots 5 and 6 or a part of said lots to the appellant W. L. Provine. Appellees further allege that they acquired said lot 12 in block 668 by deed dated August 29, 1914; that at the time they so acquired the same there was, and now is, upon it a five-room frame house and other improvements of the reasonable market value of $2,250, and that the lot, exclusive of the improvements thereon, is of the reasonable market value of $1,500; that said house on said lot faces or fronts Harry avenue; that Harry avenue is a street about 50 feet wide, and extends from California avenue on the west to Prairie avenue on the east, being a distance of two blocks; that at the time appellees purchased their said lot 12 buildings had been erected on both sides of Harry avenue fronting on said avenue in excess of 50 per cent. of the entire frontage of said avenue; and that said buildings are still fronting on said avenue. Appellees further allege that Annex avenue is a well-defined thoroughfare and street about 50 or 60 feet wide extending south from Harry avenue a long distance, and was so defined at the time appellees acquired their said lot; that appellees' lot is in Alexander's Park addition to the city of Dallas, and that said lots 5 and 6 owned by appellants are now a part of what is known as Bergfield Place, a subdivision of block D of said Alexander's Park addition; that said Bergfield Place addition was mapped and platted showing the frontage of lots 5 and 6 owned by appellants on Harry avenue when they purchased, and that said map was and is now of record in Dallas county, Tex., and that appellants purchased with reference to said map and plat and at the time they purchased there were no improvements on their lots. Appellees allege that section 2 of the ordinance of the city of Dallas, amending section 161 of the Building Code of said city passed March 4, 1913, and which is now in effect, reads "that whenever any lots are laid off by any plat showing a frontage for said lots on any street or avenue in the residence section of the city all buildings erected on same shall keep their frontage on said streets or avenues so as to conform to the frontage of lots shown by any plat"; that soon after appellees acquired their lot the appellant Halsell made an effort to secure a permit from the building inspector of the city of Dallas authorizing him to erect a residence on parts of his said lots 5 and 6 fronting on said California avenue, with the rear thereof towards Annex avenue and appellees' property directly across the street from appellants' property; that said inspector refused to grant such permit because same was in violation of the ordinances and charter of the city of Dallas governing such matters; that thereafter, and on the 29th day of May, 1915, appellant Halsell made application to the mayor and board of commissioners of the said city of Dallas to be allowed to replat his said lots 5 and 6 so as to make three lots of the same facing west California avenue and extending back to Annex avenue; that on May 31, 1915, by resolution said mayor and board of commissioners granted the said application of said appellant; that appellees had no notice that said application had been made and granted until December 22, 1915, when they were informed that appellants were about to erect a building on part of their said lots fronting on California avenue; that when they discovered that appellants were about to so erect said building they immediately protested against a permit being granted therefor, but over said protest a permit for the erection of said building was granted, and appellants were proceeding to erect the same fronting on California avenue. Appellees allege that the resolution passed by the mayor and board of commissioners on May 31, 1915, permitting the appellants to replat said lots so as to face California avenue is void because the same was passed without notice to appellees and others whose property would be affected and greatly damaged thereby, and because said resolution is in direct conflict with section 3 of article 1 of the charter of the city of Dallas, which reads: "Should any property lying within the city limits as established by this act be hereafter platted into blocks and lots, then and in that event the owners of said property shall plat and lay the same off to conform to the streets and lots abutting on same, and shall file with the city engineer a correct map of same, provided that in no case shall the City of Dallas be required to pay for any of said streets at whatever date opened, but when opened by reason of platting of said property at whatever date platted they shall become by such act the property of the city of Dallas for use as public highways and may be cared for as such." Plaintiff further charged that, if appellants are permitted to proceed with their building and improvements, as contemplated and intended by them, Annex avenue will virtually be reduced to an alley, and appellees' property will be damaged thereby in the sum of $1,000. The appellees' petition closes with an appropriate prayer for the relief sought.

The appellants answered by a general demurrer and special answer. They allege, in substance, that on February 21, 1913, the Bergfield Building & Investment Company, a voluntary association composed of the said J. W. Halsell and other stockholders, acquired what was then known as block D of Alexander's Park addition to the city of Dallas; that said block was then divided into five lots fronting on Munger avenue, and the shortest of said lots was 598.66 feet long, and unimproved; that to enable the owners of said property to utilize the same for residence property they proceeded to subdivide said block D into two blocks numbered 1 and 2, and platted same as Bergfield subdivision of block D of Alexander's Park addition, fronting the lots involved in this controversy and other lots on California street; that at an expense of about $19,000 they surveyed, graded, and otherwise improved said entire block as subdivided; that the ten said owners were notified by the street commissioner of the city of Dallas that he would not approve said subdivision, and refused to permit the filing of said last-mentioned plat and directed that the same be changed by extending Harry avenue across block 1 of said subdivision to California avenue in said subdivision, thereby appropriating a strip 50 feet wide out of said block 1 for street purposes, and thereby dividing said block 1 into two blocks, the west end to be numbered 1, and the east end to be numbered 2, and ordered that the west end of said block No. 2, and known on the map as lots 5, 6, and 7, be replatted into lots 5 and 6 (which are the lots in controversy) fronting on said extension of Harry avenue, and that said subdivision as changed be filed as a plat of said subdivision; that said owners were compelled to and under protest did plat said property as ordered by said street commissioner; that said lots 5 and 6 fronting on Harry avenue as platted under protest were of the reasonable value of $3,000, but as divided into three lots fronting on California avenue was and is of the reasonable value of $3,750. Appellants further aver that the said J. W. Halsell and others in May, 1915, applied to the street commissioner and to the mayor and board of commissioners of the city of Dallas for permission to amend and change and replat said portion of said subdivision then known as lots 5 and 6 as to divide the same into three lots 5, 6, and 7 and to front said three lots on California avenue; that thereafter, on the 31st day of May, 1915 (as alleged by appellees), said board of commissioners granted said application and directed said lots to be divided and replatted into three lots fronting on said California avenue; that in pursuance to such order of the board of commissioners the appellants did on said date amend, change, and replat said lots 5 and 6 as directed, and that said amended plat has been certified and filed with the...