Kirschke v. City of Houston
| Decision Date | 10 December 1959 |
| Docket Number | No. 13484,13484 |
| Citation | 330 S.W.2d 629 |
| Parties | John KIRSCHKE et al., Appellants, v. CITY OF HOUSTON, Appellee. |
| Court | Texas Court of Appeals |
Patterson, McDaniel & Moore, Houston, Bennett B. Patterson, Louis M. Moore, Houston, of counsel, for appellants.
R. H. Burks, City Atty., Homer T. Bouldin, Sr., Asst. City Atty., Houston, for appellee.
This is an appeal from a judgment dismissing appellants' suit upon their failure to amend after the court sustained appellee's special exceptions to their petition.
Appellants sued the City of Houston to recover damages allegedly resulting from the taking, damaging or destroying for or applying to public use their lot in the City of Houston, known as 1214 Chartres Street, without adequate compensation being made, in violation of Article 1, Sec. 17 of the Constitution of the State of Texas, Vernon's Ann.St. and Article 1, Sec. 19 thereof, and also in violation of the Fifth, Ninth and Fourteenth Amendments to the Constitution of the United States.
We shall not set out appellants' petition, which is quite long. Suffice it to say that they alleged in substance that on February 20, 1956 they applied to the City of Houston for a building permit to construct on said premises a public garage at a cost of some $10,000. The building permit was denied. Appellants were advised by the Council through the City Secretary that it was denied because it appeared that said property would be needed for highway purposes. Appellants requested the City to purchase the property. They were informed that the City could do nothing about purchasing the property until litigation involving the legality of the so-called 'wheel tax' had terminated favorably, when in all probability appellants would be contacted regarding the acquisition of the property.
Appellants also alleged that no money had been appropriated for the prospective highway or freeway linkage project in question, and that such project had not been approved by legal authority, nor had any steps been taken looking toward the condemnation of property that might be crossed or affected by said proposed freeway linkage, nor was there any certainty that the same would be constructed or the preliminary plans for the same would not be abandoned, nor had the City established any building lines defining the land that might be condemned, nor had any action been taken by the City or State sufficient to advise property owners at or near appellants' property as to what land would be affected, if any, in the event the proposed scheme or idea for a freeway linkage should become at some future time a reality.
Appellants further alleged that the denial of the building permit by the City amounted practically to a confiscation of their property and its beneficial use, and to an arbitrary, unjust, unreasonable and intentional limitation upon the use of their property, and a direct, actual and physical invasion or appropriation of their rights in said property with the intention of permanently depriving appellants of the use of same, and that the City's action manifested an intention to subject said property to a public use and amounted to 'a taking.'
Appellants then alleged alternatively a partial taking, damaging and destruction of their property and property rights in said lot and of the increments of the proceeds into which said property could be converted. They further alleged that the property had diminished in value and was not as valuable as it would be if it could be used as appellants intended to use it; that the City has prevented appellants from improving their property and maintaining it for its highest and best use as residential or commercial property; and that it has refused to permit the remodeling and modernization of said property under its general policy of refusing building permits so that the property would depreciate in value and it would cost the City less if it decided later to take the property.
Appellee leveled eight special exceptions against appellants' pleading, alleging in essence that the granting or refusing of the building permit by appellee was within the police power of the City, and was a governmental function of the appellee within its police powers as a 'home rule city,' so that as a matter of law appellants could not recover damages for refusing their application for a building permit; that the refusal to issue the permit did not amount to 'a taking,' partial taking or direct invasion of appellants' property nor an actual appropriation thereof; and that as a matter of law appellants' allegations were insufficient and they were not entitled to recover any damages.
Appellants' 19 Points of Error are interrelated and will be considered together. Their contentions are substantially set out in the foregoing summary of the allegations contained in their petition. In addition, they assert that their property has been tied up for 3 1/2 years without the least semblance of legal authority; that no building lines for the highway have been established and may not be for years, and that the entire area including their property is frozen; that they have been and are denied the free use and enjoyment of their property, although required to pay taxes thereon; that the possession, use and enjoyment of their property has been abridged and destroyed by the exercise of the power of eminent domain under the guise of the police power to issue or refuse building permits; and that the freezing of their property is the first step toward the appropriation of the same for public use under the power of eminent domain.
Appellants assert that under Hammon v. Wichita County, Tex.Civ.App., 290 S.W.2d 545, they are entitled to recover. In that case Wichita County obtained a temporary injunction against the appellant, enjoining him from drilling an oil well within a proposed right of way for an improved highway system. The County had not acquired the right of way either by purchase or condemnation proceedings, although it intended to do so at some future date. The Fort Worth Court of Appeals dissolved the injunction on the ground, among others, that the County had no right to destroy appellant's property prior to the lawful appropriation thereof by paying or securing the payment of compensation, and had no right to restrain appellant from making a lawful use of his property prior to a legal taking thereof by the County.
We are in accord with the holding in the Hammon case. It did not involve, as this case does, a claim for the recovery of damages or compensation. We think there is little question but that appellants in the present case under the facts alleged had, and still have, the right to compel the City and its officials, by mandamus or possibly a mandatory injunction, to issue to them a building permit. Upon the refusal of the City to issue such permit, appellants could proceed with the construction of their improvements without a permit and enjoin the City from interfering therewith, since the City by refusing such permit, is in effect illegally interfering with appellants' property rights and a lawful and legitimate use of their property prior to a legal taking thereof. City of Dallas v. McElroy, Tex.Civ.App., 254 S.W. 599, error dism. Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 19 A.L.R. 1387; City of Dallas v. Mitchell, Tex.Civ.App., 245 S.W. 944, error ref.
This Court is called upon to decide, however, whether appellants have the right under the facts of this case to sue for and recover damages or compensation against the City for allegedly taking or partially taking or damaging or destroying or interfering with the use of their property by refusing to issue to appellants a building permit.
We have not found or been cited to any Texas case directly in point. In Henle v City of Euclid, 97 Ohio App. 258, 125 N.E.2d 355, relied on by appellants, the Court of Appeals of Ohio held in substance that the City does not have the right to 'freeze' an owner's property or interfere with its beneficial use until it gets around to appropriating it for public purposes as a part of a freeway, nor is the owner compelled to stand by, paying taxes without benefit, until the development reaches a stage, if it ever does, where the property must be taken for freeway purposes. The Henle case was an action for a declaratory judgment, injunction and equitable relief and not for damages or compensation.
Appellants cite the case of State v. Hale, 136 Tex. 29, 146 S.W.2d 731. In that...
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