238 S.W. 206 | Tex. Comm'n App. | 1922
On September 25, 1920, defendant in error, Invader Oil & Refining Company of Texas, instituted this suit against plaintiff in error, the city of Port Worth, alleging, in substance, that it was proceeding to erect and construct, in virtue of a building permit issued by the proper officers of the city of Port Worth, in accordance with the plans and specifications which said officers had approved, a gasoline filling and oil station upon property owned by it situated in the city of Port Worth and upon which it had expended large sums of money, when the city, acting through its police commissioner, arrested its foreman in charge of the construction, and threatened to arrest and incarcerate in jail the agents and servants of defendant in error if they persist in their efforts to erect such structure, and that, unless restrained, it would carry out the threats and prevent the erection of the building. The court issued a temporary injunction granting the relief prayed for.
On October 13, 1920, the city filed its answer to this petition, consisting of a general demurrer and a general denial, except as to facts admitted in its answer. It specially pleaded that on June 29, 1920, in virtue of the authority conferred upon it by its charter, it enacted an ordinance making it unlawful for any person, firm, or corporation to construct or maintain a gasoline filling station within the corporate limits of the city, without first obtaining a permit for such purpose from the board of commissioners of the city, and that the expenditures by the company were subsequent to the enactment of this ordinance.
It also alleged that long prior to the time defendant in error conceived the idea of erecting and maintaining this filling station there existed a city ordinance regulating the handling and storage of gasoline, which ordinance would be violated by the maintenance of such gasoline station; that there was aw ordinance which made it unlawful to cut into any curbing along the streets of the city or make any approaches over the sidewalks thereof; and that the maintenance of such a station would constitute a nuisance in that it would result in a menace to the health and happiness of the occupants of residences adjacent thereto because of the escaping noxious vapors, poisonous gases, and the noises of motorcars to be served, and a constant source of danger to pedestrians using the sidewalk adjacent thereto by the going in and coming out of motorcars at the station, which nuisance it had authority to abate. On the same day that it filed its answer, it also filed a motion to dissolve the temporary injunction.
Defendant in error filed its supplemental petition to the city’s answer, consisting of a general demurrer and general denial. As to the ordinance of June 29, 1920, it pleaded that the ordinance was passed after the issuance of the permit by the city, and that this ordinance could not militate against the vested right conferred by the permit under which it had commenced the erection of the structure. It also pleaded that the ordinance with reference to storage of gasoline and other explosive oils' had been repealed prior to the issuance of its permit. While admitting the power of the city to abate nuisances, it pleaded a want of power upon the part of the city to declare, in substance, that tlie maintenance of such a station would be a nuisance. It denied the applicability of ’ the ordinance pleaded by the city regulating the handling and storage of gasoline to the issues of this case, but alleged that it had installed suit
Upon the motion to dissolve the injunction the court concluded that the ordinance of June 29, 1920, was a valid exercise of the police power of the city; that the ordinance with reference to securing permits from the city commissioners for the construction of driveways and approaches over the sidewalks of the city applied to all persons, firms, and corporations. In so far as enjoining the city from interfering with the construction and erection of the filling station, the court dissolved the injunction, hut, in so far as the erection of a building upon the lot was concerned, the injunction was continued in force. The city was not enjoined from enforcing the ordinance and preventing the installing of equipment for the storage of gasoline, nor enjoined from enforcing its ordinance prohibiting the construction or use of driveways over its sidewalks.
It is our view, and we recommend, that the judgment should be reversed, but, instead of being rendered, that it be remanded, with instructions to continue the injunction in force until there is a final judgment upon the merits.
Judgments of the District Court and Court of Civil Appeals reversed, and cause remanded to the district court, with instructions to continue the injunction in force until there is a final judgment upon the merits.
<te>For other oases see same topic and KEY-NtFMBER íd all Key-Numbered Digests and Indexes