Archenhold Automobile Supply Co. v. City of Waco
396 S.W.2d 111
Tex.
1965
Check Treatment

ARCHENHOLD AUTOMOBILE SUPPLY CO., Petitioner, v. The CITY OF WACO, Respondent.

No. A-10642.

Supreme Court of Texas.

Oct. 13, 1965.

Rehearing Denied Dec. 15, 1965.

111

proposition that the trial court erred in its charge because the jury was not limited to “compensable items of damage” in determining the before and after market value of DuPuy‘s property. The support therefor was an objection to the charge on the ground that it did not limit consideration of the jury to compensable items of damage. It was argued generally by the City before the Court of Civil Appeals that the jury was allowed “to consider circuity of travel, loss of view insofar as it affected highest and best use, loss of light and air and anything that they might pick up from the evidence or the exhibits.” The record at bar reflects that the problem of an impairment of light, air and view is not involved. The trial court sustained special exceptions to the allegations in DuPuy‘s original petition concerning light, air and view and during the trial sustained objections of the City to testimony regarding these elements as being irrelevant and immaterial to any issue in the case and as not supported by the pleadings. However, there was included in the charge to the jury a special instruction which recited that evidence had been admitted relating to the possible effect the construction of the viaduct may have had on the view from DuPuy‘s property and which limited consideration of such evidence to determination of the highest and best use for the property. The City did not specifically object to this instruction and we are at a loss to understand the reason for its inclusion since the trial court had sustained the objection of the City to the proffered evidence relating to the elements of light, air and view. But in any event we do not consider that harmful error was presented to the Court of Civil Appeals in these respects. This Court in

, recognized that the rule applicable to the determination of damages when there has been a permanent injury to land by reason of the construction of a public improvement requires an ascertainment of the difference between the market value of the land immediately before and immediately after the construction. The reasoning of the Court in resolving the question there presented is equally applicable to the problem here presented, i. e., it is not proper to instruct the jury as to certain items or elements of damages which may or may not be taken into consideration in ascertaining depreciation in market value; the Court there said: “It appears to us that in most if not in all cases the whole matter of what may be considered by the jury and what may not be considered will be best determined by the trial court in the admission and exclusion of testimony rather than by instructions to the jury.”

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN, J., dissenting.

Thomas R. Hunter, City Atty., Jones, Boyd, Westbrook & Lovelace, Waco, for respondent.

STEAKLEY, Justice.

This is a companion case to

. It is likewise a suit against the City for damages under Article I, Sec. 17, of the Constitution of Texas, Vernon‘s Ann.St. resulting from the construction by the City of the South 17th Street viaduct. As in DuPuy, there was no physical appropriation of Petitioner‘s property and as the case reaches us it involves only the impairment of access rights. The Court of Civil Appeals reversed the judgment of the trial court for Petitioner, Archenhold Automobile Supply Company, based on the favorable jury verdict, and rendered judgment for the City; its holding was that “* * * the construction of the viaduct by the City was a valid exercise of its police power, and since appellee has access to its property as herein stated, and has not been denied total access to its property, there is no taking, and the loss and inconvenience it may have sustained is noncompensable.”
. We granted the application for writ of error in this case at the time of such action in DuPuy, and the cases were submitted together.

The physical facts pertaining to the property of Archenhold are depicted on the accompanying schematic diagram and are described in detail in the opinion of the Court of Civil Appeals. In relation to the property of DuPuy considered in the companion case, the property of Archenhold is located immediately across what was South 17th Street. The major difference is that the Archenhold property extends to and fronts on Franklin Avenue, whereas the DuPuy property fronted on and had access to South 17th Street only. It may also be mentioned that the location of Archenhold‘s building and the viaduct leaves Archenhold with a twenty-five-foot open space which is used for parking motor vehicles.

Bryan, Wilson Olson & Stem, Waco, for petitioner.

The basic contentions of the parties, and of the Attorney General and the attorneys for other cities filing amicus curiae briefs, are the same as in DuPuy. As there said, the initial and primary question for determination by the Court in a given situation is whether access rights have been impaired to an extent which constitutes a damage to property for a public use within the purview of Article I, Sec. 17, of the Constitution of Texas which provides that “No person‘s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * * *.” For the reasons expressed in DuPuy, such is not the case where a property owner is left with reasonable access, and this problem is to be resolved in the light of conditions affecting the particular property under review before and after construction of the public improvement. It is obvious that at both such times the property of Archenhold was more favorably circumstanced than the property of DuPuy. The latter was left abutting on a cul-de-sac on the street on which he fronted, and the only street to which he had access. Archenhold, on the other hand, continues to front on, and to have full access to, Franklin Avenue and quite clearly has been left with substantial access. The question of whether Archenhold retained reasonable access should not be fragmented, i. e., be made to turn on what happened on South 17th Street apart from the unimpeded frontage on Franklin Avenue. The better rule, in our opinion, is that of the courts of New York which hold that one of two public streets may be closed without compensation to an abutting landowner if the remaining street furnishes suitable means of access.

;
. We hold that Archenhold has not been deprived of reasonable access. This is not to say that Archenhold has not suffered damages in the diminishment of his means of access with regard to South 17th Street. There has been damage and, indeed, special damage not suffered in common with the general public. But as we have held in DuPuy, this is not sufficient to invoke the compensation provision of the Constitution under review. The damages suffered by Archenhold as a result of the changes which were wrought on South 17th Street are damnum absque injuria.

The judgment of the Court of Civil Appeals is affirmed.

SMITH, WALKER and GREENHILL, JJ., dissenting.

GREENHILL, Justice (dissenting).

The Court has a very able opinion in the companion case hereto,

. The reasons expressed in it are, in my opinion, a just basis for a recovery by Archenhold.

At the conclusion of its opinion in this case, the Court recognizes that Archenhold had been damaged and that “indeed [it has suffered] special damage not suffered in common with the general public.”

Beyond question the property rights of Archenhold were substantially damaged for the public use. Our Texas Constitution says that no person‘s property shall be taken or damaged for public use without adequate compensation being made. Article I, Sec. 17.

It follows, at least to me, that Archenhold is entitled to compensation for the damage it has suffered for the public use.

SMITH and WALKER, JJ., join in this dissent.