70 Tex. 366 | Tex. | 1888
This suit was brought by appellee to enjoin appellant, the city of San Antonio, and also the county of Bexar, from erecting a public building upon the open space in the city which is known as the “Military Plaza.” The trial court upon the hearing, granted a perpetual injunction and the city alone appeals.
The cause was tried upon an agreed statement of facts, from which it appears that the appellee is a property owner and a tax payer in the city, but that his property does not abut upon the plaza, and that he is not specially injured by the obstructions which were about to be placed thereon. It also appears that the military plaza is an open square, and is now and has for a time been beyond the memory of the oldest inhabitant, used as a market place for the sale and exchange of provisions and live stock and for the drilling of soldiers; that the ville of San Fernando (now San Antonio) was laid out and erected into a town as early as the year 1731, by a decree of the King of
It was objected in the court below, and is insisted here, that the plaintiff showed no such interest as authorized him to bring this suit, and if this ground be well taken the judgment must be reversed. We think it a principle established by the overwhelming weight of authority in the courts of all countries subject to the common law, that no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself. As applied to public measures the doctrine is elementary. (2 Cooley’s Blackstone, 219.) For a special damage resulting from the invasion of a right enjoyed by a party in common with the public, the law affords him a
It distinctly appears in this case that the plaintiff will not be specially injured by the obstructions about to be placed upon the plaza in question. We therefore conclude that he cannot maintain this suit, unless it should be held that the laws of Spain under which the municipality was originally established, and the squares were dedicated to public use, gave this right to every inhabitant thereof, and that the right has descended to each inhabitant through the successive changes of government whichbave since taken place. Law 3 of title 32 of the Third Partida reads as follows: “If a man begin to erect a new edifice in the public places or streets, or common threshing grounds of any place, without permission of the King, or of the council upon whose ground he builds it, then any one of the inhabitants may forbid him to continue the work.” * * (1 Moreau & Garl
Now, it is contended in effect, that the right of each inhabitant in a municipality to forbid the erection of buildings upon public grounds, is a right so vested and inherent, that it continued operation after the change of government, and notwithstanding the adoption by the Republic of Texas of the common law, and that it can still be inforced at the suit of each individual resident of the city. But we do not so regard it. These provisions were purely remedial, and as such subject to alteration or repeal, and being, as shown, inconsistent with principles of procedure of common law and equity have been repealed by its adoption. But we think that the law quoted never applied to the erection of buildings by the municipality itself The language shows that an inhabitant had no right to forbid a work which was being erected with “the permission of the king or council;” and therefore a private individual could not exercise this power when the edifice was being constructed by the direction either of the sovereign or the governing body of the municipality. This is also made manifest by Law 23 of the same title, which we quote: “No one ought to erect a house or other building or works in the public places * * which are common to cities, towns or other places. For as they are left open for sake of regularity (apostura) and the common good of all who come there, no one ought to take possession of them or labor there for his own particular benefit, and if any one contravene this law, that which he builds there ought to be pulled down and destroyed, and if the corporation of the place where the works are constructed choose to retain them for their own use and not to pull them down they may do so, and they may make use of the revenue they derive therefrom in the same manner as of any other revenue they possess.” (1 Mor. & Carl. Partidas, 447.) We think the conclusion is not to be resisted, that an inhabitant of a Spanish municipality, merely as such, had no
Injunction dissolved and suit dimissed,