Scanlan v. City of Houston

• Decision Date: 08 February 1940
• Docket Number: No. 11029.,11029.
• Citation: 137 S.W.2d 204
• Parties: SCANLAN et al. v. CITY OF HOUSTON.
• Court: Texas Court of Appeals

137 S.W.2d 204

SCANLAN et al. v. CITY OF HOUSTON.

No. 11029.

Court of Civil Appeals of Texas. Galveston.

February 8, 1940.

Rehearing Denied March 7, 1940.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by Lillian Scanlan and others against the City of Houston for an injunction against paving the portion of a street abutting plaintiffs' property. From an order refusing a temporary injunction, plaintiffs appeal.

Affirmed.

Walter F. Brown, of Houston, for appellants.

Sewall Myer, City Atty., and Vernon Coe, Spurgeon Bell, Will Sears, and A. L. Lewis, Asst. City Attys., all of Houston, for appellee.

GRAVES, Justice.

This appeal, brought to and advanced for hearing in this court, pursuant to R. S. Article 4662, is from an order of the 113th District Court of Harris County refusing the appellants a temporary injunction against the appellee restraining it from proceeding with the pavement it had previously determined upon of land it found constituted the unpaved portion of Fannin Street in Houston, from the south property line of Calhoun Avenue to the north property line of Pierce Avenue; such unpaved portion lying on the west side of Fannin Street, between those two avenues, and abutting appellants' property, known as Block 404 of such City.

The challenged order was entered by the court, after a full hearing of pleadings and evidence from both sides, but otherwise than as recited in the decree itself, was not supported by filing findings of either fact or law.

The recitations referred to, in so far as deemed material, were as follows:

"Whereupon the Court having considered the said pleadings, evidence and argument of counsel, announced * * * that the plaintiffs were not entitled to such temporary injunction, provided that the defendant, City of Houston, acting through its duly authorized Mayor and City Council, would within five days file an agreement to prosecute with due diligence this suit to final judgment, to not attempt to discontinue the said suit until final judgment is entered, to prosecute its cross-action seeking in the alternative to condemn the land in dispute east of the fence on Fannin Street, in the event that a final judgment was entered adjudging the land in controversy to the plaintiffs, and in such event to pay the amount awarded in the condemnation proceedings as damages to the plaintiffs, which said agreement was to further expressly waive any question of invalidity of the agreement by reason of the court not requiring the City to put up any amount of cash or bond or other security.

"Now, on this 13th day of December, 1939, it appearing to the court that the City of Houston has duly and legally caused to be executed the said agreement and has filed the same with the Clerk of the Court as a part of the record in this cause, and the Court having examined the same and approved such agreement,

"It is therefore ordered, adjudged, and decreed, that the petition of the plaintiffs, Lillian Scanlan and Stella Scanlan, praying for a temporary injunction against the defendant, City of Houston, be and the same is in all things refused and denied, to which ruling the said plaintiffs except and give notice of appeal."

The single question the appeal presents is whether the court abused its discretion in thus refusing the writ. Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S. W.2d 537, at page 539, column 2, and authorities there cited.

In insisting here that the quoted order did go beyond the bounds of a sound judicial discretion, in denying them the coveted writ, the appellants do so upon the ground that the threatened paving, if permitted to be carried out, will forcibly take from them a strip of about 20 feet by the entire length of the block off of the east side of their Block 404, which they claim to be not only the owners of in fee simple, but to have been in peaceable and adverse possession of against the world at all times since the year 1871, describing such property as follows:

"Block Four Hundred and Four (404) of the City of Houston, Harris County, Texas, and of all land lying between Pierce Avenue and Calhoun Avenue and extending Southeast from Main Street to the concrete curb as it has existed for many years along the Northwest line of Fannin Street, the said curb being the curb which extends from Pierce Avenue to Calhoun Avenue Southeast of the old line of trees on the Southeast part of said property."

In answer, the appellee insists that such evidence showed the disputed strip to have been a part of Fannin Street, under dedication thereof to public uses as such, from at least the year 1898 to the time of this hearing.

So that, as between these two contentions, the controversy is to be determined from what the evidence does show, each side claiming it to have been undisputed in its own favor.

In such a proceeding, this court, in the cited Scanlan v. Houston L. & P. Co. cause, supra, at page 540 of 62 S.W.2d, in which writ of error was refused, thus stated the principle in accordance with which the evidence must be appraised: "* * * as stated in section 253 of 24 Texas Jurisprudence, supra, the rule is that, `if the order was based on conflicting evidence or diverse inferences, it will not be disturbed. The evidence is not reviewed for sufficiency, as it would be upon appeal from a final judgment, but only to see if it supports the court's exercise of discretion.'"

When this evidence is measured by that standard, it seems plain that no such abuse is shown; this for the main reason that, taking the body of the...