Sigel v. Buccaneer Hotel Co.

• Decision Date: 27 March 1931
• Docket Number: No. 9505.,9505.
• Citation: 40 S.W.2d 168
• Parties: SIGEL v. BUCCANEER HOTEL CO. et al.
• Court: Texas Court of Appeals

40 S.W.2d 168

SIGEL v. BUCCANEER HOTEL CO. et al.

No. 9505.

Court of Civil Appeals of Texas. Galveston.

March 27, 1931.

Rehearing Denied May 28, 1931.

Appeal from District Court, Galveston County; C. G. Dibrell, Judge.

Action by Louis Sigel against the Buccaneer Hotel Company and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Albert R. Young, of Houston, for appellant.

Frank S. Anderson and McDonald & Wayman, all of Galveston, for appellees Buccaneer Hotel Co. and others.

Bryan F. Williams, of Galveston, for appellees City and others.

PLEASANTS, C. J.

This is a suit by appellant against the appellees for a mandatory injunction and, in the alternative, for damages for alleged unlawful obstruction and closing by appellees of a portion of a public street of the city of Galveston upon which appellant is an abutting property onwer. The suit is brought against the Buccaneer Hotel, a corporation, W. L. Moody, Jr., the city of Galveston, and the mayor and members of the board of commissioners of said city. After naming the defendants and describing the portion of the street alleged to be unlawfully obstructed and closed, and plaintiff's abutting property, the petition alleges, in substance: That on or about the 15th day of September, 1927, the city of Galveston, acting by and through its board of commissioners, passed an ordinance closing that portion of the street before described, and entered into a contract with the defendant W. L. Moody, Jr., giving him the right to occupy and use said portion of the street by erecting thereon a portion of a hotel building to cost approximately $300,000, such right to the use and occupancy of the street to continue as long as the hotel provided for in the ordinance should be maintained by W. L. Moody, Jr., his successors or assigns.

The defendants Buccaneer Hotel Company and W. L. Moody, Jr., answered by general demurrer, special exceptions, and specially pleaded that, in the construction of the hotel, they had complied with the provisions of the ordinance of the city of Galveston set out in plaintiff's petition, and that this ordinance was a valid exercise of the city's control of its streets and gave them authority for obstructing the street in the manner and to the extent stated in plaintiff's petition, and plaintiff had full knowledge that a portion of the building was being constructed in the street and without objection he permitted them to expend large sums of money in its construction. They further specially pleaded: "That in or about the year 1928, defendant Buccaneer Hotel Company commenced the construction of a hotel building on the premises so owned by it, and that a portion of said building occupied a part of the portion of said Avenue Q closed by said ordinance; that defendant Buccaneer Hotel Company expended approximately Seven Hundred Fifty Thousand ($750,000.00) Dollars in the construction of said building and that the plaintiff had full knowledge of and assented to the placing of a portion of said hotel building on the part of Avenue Q so closed by said ordinance; that the plaintiff willfully and maliciously assented to the erection of said hotel building and raised no objection thereto during the construction thereof, well knowing that said defendant was expending a large sum of money in the erection of said improvements, and that if it was required to remove the portion of said building occupying the closed part of Avenue Q, after the same had been completed, that the damage and injury to said defendant, Buccaneer Hotel Company, would be enormous; that on account of the large sum of money involved in the construction of said building and the damage and injury to defendant, Buccaneer Hotel Company in the event it should be required to remove the portion thereof occupying the closed part of said Avenue Q, it was the duty of plaintiff to advise said defendant, Buccaneer Hotel Company, of his objections thereof, and by reason of his failure to so act, and of the assent of the plaintiff to the erection of said building and occupancy of said closed portion of Avenue Q, and of his said willful and malicious conduct, the plaintiff is estopped from maintaining this suit for injunctive relief, or for damages."

The defendants city of Galveston and the mayor and members of the board of commissioners of the city answered by general demurrer and special exceptions to plaintiff's petition, and by special pleas, the nature of which need not be here stated.

They also, by cross-action, asked judgment over against the defendant W. L. Moody, Jr., for any damage or costs that might be adjudged against them.

The trial in the court below without a jury resulted in a judgment in favor of all of the defendants.

The ordinance referred to and made a part of plaintiff's petition is as follows:

"Whereas, W. L. Moody, Jr., is the owner of that part of the Northwest block of Outlot No. One Hundred Eighteen (118), lying north of the Galveston County Seawall right-of-way, as delineated upon the map adopted by the County Commissioners Court of Galveston County, Texas, at the meeting held on August 23, 1902, a copy of which said map is of record in the Deed Records of Galveston County, Texas, in Volume 194, on pages 1, 2, 3 and 4; and

"Whereas, the said W. L. Moody, Jr., is desirous of erecting on said premises a hotel at a cost of approximately $300,000.00, and said premises are of insufficient area to contain such proposed building; and

"Whereas, said hotel building is needed for the accommodation of visitors to the City of Galveston, and its construction will increase the taxable value of real estate in said City; and

"Whereas, the sidewalk on the south side of Avenue Q, adjacent to the north building line of said premises, has been but little used by pedestrians, and is used largely for the purposes of storage; now, therefore,

"Be it ordained by the board of commissioners of the city of Galveston, as follows:

"Section 1. That that portion of Avenue Q between the south curb and the property line, extending from the east property line of Tremont Street, to the north line of the Seawall Boulevard, be, and the same is hereby abandoned, discontinued and closed as a public street and thoroughfare as long as it is used by W. L. Moody, Jr., his successors or assigns, in connection with the hotel to be erected and maintained on that part of the northwest Block of Outlot No. One Hundred Eighteen (118), lying north of Galveston County Seawall right-of-way, or any part thereof.

"Section 2. That the closing of the part of the street mentioned and described in Section 1 of this ordinance is made and granted upon the express condition, and for the expressed consideration, that the said W. L. Moody, Jr., and/or his successors and assigns, will commence the construction of a hotel on said premises described in said ordinance, within two years from the date of the passage hereof, and complete the same at a cost of not less than $300,000.00, and maintain such hotel on said part of the northwest block of Outlot No. One Hundred Eighteen (118), and failure of the said W. L. Moody, Jr., his successors or assigns, to so commence the erection of such hotel and erect, complete and perpetually maintain the same, shall, without further action on the part of the City of Galveston, forfeit and revoke this ordinance and every part thereof, and the possession of the parts of the street hereby closed, shall at once revert to the City of Galveston, to be used by it as a public thoroughfare.

"Section 3. That said W. L. Moody, Jr., hereby agrees, undertakes and promises to hold the City of Galveston harmless and indemnify it against all suits, costs, expenses and damages that may arise, or grow out of the closing of the aforesaid part of said Avenue Q, or by reason of his said occupation thereof.

"Section 4. The City of Galveston does not part with, and expressly reserves the right and duty at all times to exercise in the interest of the public, full superintendence, regulation and control in every respect over the rights, privileges and permission hereby granted, and especially in all matters connected with the police powers of said City.

"Section 5. This ordinance shall take effect and be in force if within ten days from the passage hereof, said W. L. Moody, Jr., shall signify his agreement hereto and accept the said ordinance and all of its terms in writing, which acceptance shall be deposited with the Secretary of the City of Galveston.

"And in the event of the failure of said W. L. Moody, Jr., to so accept this ordinance, it shall never take effect, or be in force."

At the request of appellant, the trial court filed conclusions of fact and law which contain the following findings of fact:

"1. I find that on the 15th day of September, 1927, and prior thereto to the 25th day of March, 1907, W. L. Moody, Jr., one of the defendants herein, was the owner in fee simple of the property known as `that portion of the Northwest block of Outlot 118, lying north of the Galveston County Seawall rightof-way;' * * * that said plot of ground is located on what is known as the beach front of the City of Galveston and is bounded on the south by the seawall boulevard, on the north by Avenue Q, and on the east by 22nd Street and on the west by 23rd Street. The west line of said plot of ground has a length of 120.66 ft. The south line of said plot has a length of 285.33 ft. The north line of said plot has a length of 258.5 ft., said lot coming to a gradual point at its east corner.

"2. That Avenue Q commences at 22nd Street, which is also the east corner of said plot of ground hereinabove referred to, and extends westerly to the city limits, a length of approximately two miles. Avenue Q is a street 70 feet wide, being divided into sidewalks on each side thereof of 16 ft. each, with a width between sidewalk curbs of 38 ft. Said Avenue is now, and has been for 40 years or more, a...