Lefler v. City of Dallas

Decision Date17 December 1943
Docket NumberNo. 13443.,13443.
Citation177 S.W.2d 231
PartiesLEFLER et al. v. CITY OF DALLAS.
CourtTexas Court of Appeals

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by H. S. Lefler and others against the City of Dallas to enjoin defendant from exercising municipal powers over Bluff View Estates. From a judgment dismissing the action, plaintiffs appeal.

Affirmed.

J. Manuel Hoppenstein, of Dallas, for appellants.

H. P. Kucera, City Atty., and A. J. Thuss, E. L. Markham, Jr., and R. L. Dillard, Jr., Asst. City Attys., all of Dallas, for appellee.

YOUNG, Justice.

Appellants, residents and owners of property in Bluff View Estates, which, prior to the proceedings complained of, was an unincorporated residential subdivision of Dallas County, instituted this suit against appellee, alleging invalidity of the annexation ordinance whereby their property was brought into the City; seeking to enjoin appellee from exercising municipal powers over the area. Following a restraining order granted ex parte, the City was ordered to show cause why temporary injunction should not issue. Appellee filed a plea in abatement and special exceptions, praying for dismissal of petition on ground that it was a collateral attack upon the process of annexation because plaintiffs sue as individuals and not in the name of the State as a quo warranto proceeding. Upon trial, but without hearing of testimony, the injunction was denied, plea in abatement and exceptions sustained, and suit dismissed, from which this appeal was duly taken.

The allegations of these plaintiffs may be briefly summarized, viz.: That the ordinance annexing Bluff View Estates is void, because (a) the property affected was insufficiently described, not being set forth by metes and bounds as required by City charter; (b) the lands known as Bluff View Estates do not in fact adjoin the City limits of Dallas, as required by charter and state law; (c) petitioners were denied a hearing before the City Council prior to passage of the ordinance, such being a denial of due process; (d) Art. 1, Sec. 4, of appellee charter, authorizing the annexation, is void for indefiniteness and uncertainty.

A strip of land beginning at Lemmon Avenue, some ten feet wide and three-fourths mile long, connects the annexed property with present city limits, the annexation ordinance, in describing the area, merely referring to the boundaries and calls as contained in the original layout of Bluff View Estates; length or measurement of lines not being given. However, the ordinance in question was followed by one applying comprehensive zoning to the new territory where it was particularly described by linear measurement.

City of Dallas was granted its present charter by Act of the Legislature in 1907, Loc. & Sp.Laws, c. 71, carrying forward an earlier provision, Special Laws of 1899, Ch. 8, p. 93, in regard to annexation. No change has been made in the provision since that time. Section 4 reads: "Additional Territory.—Any territory adjoining the present or future boundaries of said city may from time to time, in any size or shape desired, be admitted and become a part thereof on application made or written consent given to the city council by the owner or owners of the land, or, as the case may be, by a majority of the legal voters resident on the land sought to be added. In all such cases the territory so added shall be described by metes and bounds, in an ordinance accepting, assenting and adding the same to the municipal corporation; and thereafter the inhabitants of said added territory shall in all respects be on an equal footing with the inhabitants of the original municipal territory." Article 1175, Vernon's Ann.Civ.St. enumerating powers of Home Rule cities, reads in part: "Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty: * * * 2. The power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city, according to such rules as may be provided by said charter."

The attack here made upon appellee's ordinance is a collateral one, not being in nature of quo warranto or to which the state is a party. 30 T.J., Sec. 35, pp. 77, 78; Kuhn v. City of Yoakum, Tex. Com.App., 6 S.W.2d 91. Appellants recognize this by assuming the burden of establishing utter invalidity of the ordinance on its face; otherwise, they say, judgment should be affirmed. Appellants' objections to the measure in general are based upon an alleged failure to comply with the law governing annexation; and in this connection, distinction should be drawn between municipal acts unauthorized by law or color of law, and those consisting of a mere irregular exercise of power. Appellants, to maintain a collateral attack, must show an entire want of power on the part of the City to annex Bluff View Estates, and it is not sufficient to allege a mere irregular exercise thereof. The principles affirmed in Kuhn v. City of Yoakum, supra, are quite pertinent to all allegations wherein invalidity of ordinance is claimed. It is there stated: "The rule has not been deviated from in this state that the validity of an extension of territory of a city or school district can only be attacked by a direct suit in the nature of a quo warranto by the state, or in a proceeding in which the state is a party." (Citing authorities) Appellants' contentions, therefore, that the territory is not sufficiently described by metes and bounds; nonjoinder of the area to the City; and that complainants were not afforded a hearing before the Council, are obvious attacks on the regularity of the annexation proceedings and fall within the pronouncement of Kuhn v. City of Yoakum, supra, which case, following Graham v. Greenville, 67 Tex. 62, 2 S.W. 742, and Cohen v. Houston, Tex.Civ.App., 176 S.W. 809, writ refused has been uniformly approved in later decisions.

Adverting, however, to specific points of error, we conclude:

First, that the field notes of the land annexed constitute a sufficient description thereof by metes and bounds, within meaning of the Dallas charter. Appellants in their pleading admit that all boundary lines of the annexed property were adequately described; the ordinance being attacked as void because exact measurement of each line was not shown. We do not think it necessary to a metes and bounds description that length of line be given when, as here, all boundaries of the involved area are fully set forth by calls for course and adjoinder. Of the cases cited by appellants, the description of land in Mesquite Indep. School Dist. v. Gross, 123 Tex. 49, 67 S.W.2d 242, was held defective because of no boundary lines; similarly, in Grand Lodge of Order of Sons of Hermann v. Curry, Tex.Civ.App., 108 S.W.2d 574, 576, writ refused, Judge Slatton recognizes that metes and bounds refer to boundaries of land, making no reference to length of lines in the following: "When we look at the petition in the case before us we find that the land is not described by metes and bounds, as provided by the statute, but is described by farm numbers, and section number, in the Cross S. Ranch in Zavala county, Tex. The term `metes and bounds' as used by the Legislature was undoubtedly used in its generally accepted meaning as found in the dictionaries. Bouv.Law Dict., Rawle's Third Rev., vol. 2, p. 2207, defines metes and bounds as follows: `The boundary lines of land, with their terminal points and angles.' Ballentine's Law Dictionary, p. 814, defines metes and bounds as follows: `The boundary lines and corners of a piece of land.'" All authorities cited in vol. 27, Words and Phrases, Perm.Ed., p. 158, under Metes and Bounds, identify the term as simply a boundary line. Length of lines would not appear essential to such a description, for the obvious reason that, in determining the boundaries of land, a call for distance is considered the most...

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