L-M-S Inc. v. Blackwell

• Decision Date: 23 February 1950
• Docket Number: L-M-S,No. 2897,2897
• Citation: 227 S.W.2d 593
• Parties: INC. et al. v. BLACKWELL et al.
• Court: Texas Court of Appeals

Page 593

227 S.W.2d 593

L-M-S INC. et al. v. BLACKWELL et al.

No. 2897.

Court of Civil Appeals of Texas, Waco.

Feb. 23, 1950.

Rehearing Denied March 17, 1950.

Carrington, Gowan, Johnson & Walker, Dallas, for appellants.

H. Louis Nichols, Dallas, for appellees.

HALE, Justice.

Appellee, Blackwell and Baker, sued appellants, L-M-S Inc., a corporation, and W. C. Henger, operating as Henger Construction Company, for damage to their business in the nature of lost profits. They alleged that their loss had resulted from the conduct of appellants in obstructing the sidewalk and a portion of the street adjacent to the premises where they were carrying on their business. The case was tried before a jury. After a verdict was returned on special issues the court rendered judgment for appellees in the sum of $4200.00.

The evidence in the case shows that L-M-S Inc. owns certain property situated in the business district of the City of Dallas, being known as 1709-1715 Commerce Street. In July of 1946 appellees acquired a renewal lease on the ground floor of the premises at 1715 Commerce Street for a period of five years at a rental of $800.00 per month. Appellees operated a night club in the leased premises which was known as the 'Little Stock Club'. In the fall of 1947 appellants secured from the Building Inspector of the City of Dallas a permit to erect a 15 story office building to be known as the Mercantile Securities Building on the premises situated from 1709 to 1713 Commerce Street. As an incident thereto permission was also granted appellants to erect and maintain certain barricades across the sidewalk and into Commerce Street during the construction of the proposed office building. Accordingly, in the late fall of 1947 appellants caused the following structures to be erected in front of the building site, viz: a solid board fence about seven feet in height was erected across the sidewalk immediately west of appellees' leased premises; a fence was erected in Commerce Street so as to block off approximately one-third of the street in front of the building site; and a steam boiler, an elevator and other kinds of machinery and building materials were placed in the street within such enclosure. The structures so erected by appellants were maintained and used by them continuously until the completion of the building in August of 1949.

In response to the special issues submitted, the jury found in substance that the fence and barricade erected and maintained by appellants impaired the view of appellees' building from persons traveling on Commerce Street, interferred with the safety and accessibility with which the public could get to the Little Stork Club and diverted travel and trade away from appellees' place of business; that appellees have suffered financial loss as a direct and proximate result of the erection and maintenance of the fence and obstructions; that the structures erected and maintained by appellants did not constitute an unreasonable obstruction of said public street and sidewalk, in the light of the surrounding circumstances; that the erection and maintenance of the barricade and the construction of the Mercantile Securities Building materially interfered with the use of the property occupied by appellees for the purposes for which it was leased to them and that such interference proximately caused appellees to suffer damage, although neither the barricade nor the construction work rendered the premises leased by appellees unusable for the purposes for which they were leased; that appellees abandoned the leased premises because of the action of L-M-S Inc. in erecting and maintaining the obstructions and barricades of which complaint was made; and that appellees had been damaged by loss of net profits from the operation of their business as a direct and proximate result of the construction and maintenance of the barricades between December 1, 1947 and August 1, 1949 in the sum of $4200.00.

Appellants say the judgment of the trial court should be reversed and judgment should be here rendered discharging them from any liability on account of the loss sustained by appellees because (1) the jury found that their action in erecting and maintaining the obstructions complained of was not unreasonable in the light of the surrounding circumstances and thereby acquitted appellants of any actionable wrong and (2) the obstructions complained of were not wrongful in that appellants in maintaining the same acted reasonably and pursuant to lawful and valid permits obtained from the City of Dallas. They contend that they are not legally liable for any damages that might have resulted from their reasonable and lawful use of the abutting sidewalk and street area for the purpose of constructing a building on their premises. In support of their contention they city the following Texas cases: American Construction Co. et al. v. Seelig, Tex.Civ.App., 131 S.W. 655; Id., 104 Tex. 16, 133 S.W. 429; American Construction Co. v. Caswell et al., Tex.Civ.App., 141 S.W. 1013 er. ref.; American Construction Co. v. Davis, Tex.Civ.App., 141 S.W. 1019 er. ref. We do not think the holdings in the cited cases sustain the contention here urged or that such holdings are of controlling effect in their application to the record facts in the case now before us.

The Constitution of Texas provides in Art. I, Sec. 17, Vernon's Ann.St., that no person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person. As held by the Supreme Court of Texas in the case of Powell v. Houston & T. C. R. Co., 104 Tex. 219, 135 S.W. 1153, 46 L.R.A., N.S., 1615, the ownership of a lot or of a leasehold interest in a lot abutting upon a public street carries with it as property the right of unimpaired access and egress therefrom and whatever impairs that right and causes a depreciation in the value thereof constitutes damage within the meaning of the Constitution. O'Brien v. Central Iron & Steel Co., 158 Ind. 218, 63 N.E. 302, 57 L.R.A. 508, 92 Am.St.Rep. 305; G. C. & S. F. R. R. Co. v. Fuller, 63 Tex. 467.

The Charter of the City of Dallas provides in Section 151 as follows: 'The Governing Body of the city shall have the power, by ordinance or resolution, to grant to any owner of property abutting upon the streets or other property of the city the use thereof or to go over or under the same in any manner which may be necessary or proper to the enjoyment of said abutting property by the owner; provided, that such use be not inconsistent with or does...