El Paso Union Passenger Depot Co. v. Look

• Decision Date: 14 February 1918
• Docket Number: (No. 798.)
• Citation: 201 S.W. 714
• Parties: EL PASO UNION PASSENGER DEPOT CO. v. LOOK et al.
• Court: Texas Court of Appeals

201 S.W. 714

EL PASO UNION PASSENGER DEPOT CO. v. LOOK et al.

(No. 798.)

Court of Civil Appeals of Texas. El Paso.

February 14, 1918.

On Rehearing, March 14, 1918.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by the El Paso Union Passenger Depot Company against the City of El Paso, George Look, and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Turney, Culwell, Holliday & Pollard, of El Paso, for appellant. Jno. L. Dyer and J. H. McBroom, City Atty., both of El Paso, for appellees.

Statement of Case.

HIGGINS, J.

This case was tried upon agreed facts. A condensed statement of the material facts is as follows: Appellant was incorporated for the purpose and is the owner of and is conducting a Union Passenger Railway Station in the city of El Paso, at which passengers arrive and depart upon all trains entering and leaving said city. The station was located and built under and by virtue of an ordinance of the city approved November 15, 1902, which authorized the construction and maintenance of said station. The eighth section of this ordinance provides that:

"The city of El Paso hereby obligates itself to acquire by condemnation or otherwise, the north one-half of the west one-half of block 171, according to the map of Campbell's addition to the city of El Paso, Texas, provided the said Union Depot Company agrees and does keep and maintain the same as a public park for the use and benefit of the people of the city of El Paso. The said public park here referred to shall be open to the public by the city of El Paso between the time of the acceptance of this ordinance by the railroad companies interested therein, including the company to be organized, for the purpose of erecting the proposed new Union Passenger Depot, and the time when said depot is completed and in use."

The tract of land referred to in this section is situate in front of the station and across the street therefrom. On December 3, 1903, the city council adopted a resolution, reciting that by the ordinance of November 15th the city agreed to open a new street and to acquire by condemnation said land, "provided the Union Depot maintains the same as a public park." The land upon which the park is situate was owned by C. O. Coffin, and it was thereafter condemned by the city and acquired by it for a public park and park purposes, and since its acquisition has been used as a public park and is now owned by the city. Upon its acquisition it was turned over to appellant for the purpose of improvement and to be made into a public park. When it was so turned over the land was a depression, and in order to make it a park, it was necessary to fill in a depth of 8 or 10 feet and to build a retaining wall on its south and east sides and to build a fence on the south to prevent people from falling into the depression on the south. All of this was done by appellant at a cost of several thousand dollars, and it also planted the same in grass and trees and made other improvements necessary to its use as a park. Appellant, for itself and the railroads entering El Paso, accepted the provisions of the ordinance of November 15th and has done all of the things required of it by such ordinance. San Francisco street, which separates the park from the station, is at least 75 feet wide. The maintenance of the park and its beautification benefits appellant by making its property more attractive and inviting. In January, 1917, there was pending a suit by the city of El Paso against George Look and D. Storms, wherein the city sought to recover a small tract of land close to the park. The parties to this suit were desirous of compromising it, and to that end the city council, in January, 1917, by resolution authorized its mayor to enter into a compromise agreement with Look and Storms by the terms whereof the city was to dismiss its suit and to dedicate to street and sidewalk purposes all that portion of the park which lies west of the east line of Crossby street as shown on Campbell's addition map, and to construct a sidewalk upon a portion thereof; to construct a curb along the westerly line of the sidewalk, and to pave all that so dedicated for street and sidewalk purposes not covered by said sidewalk. The city was also to dedicate the southerly 14 feet of the park for permanent sidewalk purposes, so that it should at all times be kept open and used for sidewalk purposes and no other. The city further agreed to pass all ordinances necessary to accomplish the dedication of said 14 feet for sidewalk purposes. By the terms of said resolution Look and Storms were to convey to the city for street and sidewalk purposes the land sued for in the suit mentioned; also to build the sidewalk on the southerly 14 feet of the park which the city had agreed to dedicate to permanent sidewalk purposes as above stated. Thereafter the city, Look, and Storms entered into a contract embodying the provisions authorized by said resolution, and proceeded in its performance. In performance of said contract and acting for the city, Look began the construction of a cement sidewalk upon said southerly 14 feet of the park, as Look and Storms in said contract had agreed to do, and was proceeding to build the same with the permission, warrant, and authority of the city, as evidenced by said resolution and contract. No more injury was done to the trees, grass, etc., upon the park than was necessary in properly constructing said side-walk. It is the purpose of Look to construct business houses upon property owned by him adjoining the park on the south; in front of said houses will be the 14 foot sidewalk. Such houses would be separated from the park by the sidewalk only, and Look would have the benefit of a sidewalk in front of his houses but the same would also afford a passageway and be a sidewalk for the use of the general public. The building of the sidewalk would, to that extent, lessen the area of the park available for grass, trees, etc. Plaintiff is a citizen and taxpayer of the city and county of El Paso, and has no adequate remedy at law for any loss which may be sustained by it in the premises, and the amount of its damage is incapable of exact ascertainment.

Appellant brought this suit against the city of El Paso, Look, and Storms and W. E. Fletcher, an employé of Look, to enjoin the appropriation of any part of the park for street and sidewalk purposes or devoting the same to any purpose other than that for which it was condemned, and to restrain them from doing anything which would interfere with the maintenance of the park by plaintiff, etc. From a judgment refusing any relief the plaintiff prosecutes this appeal.

Opinion.

The park property was acquired by the city in condemnation proceedings for public park purposes, and it was thereby dedicated to such use. The facts disclose a design and effort to now appropriate a part thereof to street and sidewalk purposes for the use of the general public, and in which Look and Storms would have a special interest by reason of a right of ingress and egress which would be thereby afforded to business houses which Look proposes to erect immediately south of the park. That such appropriation would be to a use inconsistent with the use for which it was originally dedicated is clear. Mr. Dillon says that individual owners of lots adjacent to a public square, the value of which is affected by an illegal diversion of the use of the public place, have such rights and interests that they may maintain a bill in equity to enforce the trust or to restrain the appropriation of the public square by the original proprietors or others to any use inconsistent with the purpose for which it was dedicated. 3 Dillon, Mun. Corps. (5th Ed.) 1132 (661).

Upon its property just across the street appellant maintains and operates a Union Depot Station, at which passengers arrive and depart from all trains entering and leaving the city. Such places at all times have present a greater or less number of weary travelers and others who are awaiting the arrival and departure of trains. At times they spend hours there in a hot and fetid atmosphere and amid throngs of people. What can more conduce to their comfort and the attractiveness of such a place than the presence of an open park just across the street, with flowers, grass, etc., where they can go and to some extent relieve their discomfort and lessen the tedious wait. Considering the nature of appellant's use of its property, the adjacent park is of very great value to it, and to divert the same or part thereof to crowded streets and sidewalks would materially affect and depreciate the value of appellant's property. Not only this, but appellant, upon the faith of an agreement upon the part of the city to devote the same to park purposes, has spent thousands of dollars in raising the grade, building retaining walls, a protecting fence, planting trees, grass, and otherwise beautifying and improving the park. All of these facts together disclose such a special right and interest in the continued use and maintenance of the property as a park, and such damage to the value of appellant's property necessarily resulting from the proposed diversion, as entitles it to an injunction. The case falls within the rule...