33 S.W.2d 761 | Tex. App. | 1930
We have carefully considered the record in this case, including the statement of facts, which we have read, and conclude that the trial court's judgment must be affirmed. It is very clear, under the authorities, that an applicant for injunctive relief must make a clear showing that he is entitled to the relief demanded, and that such relief requires the restraint of some act prejudicial to him. See article
It is not contended that the state highway commission is without authority to change the direction and location of a state highway, and the only cause of complaint shown by the appellant Cunningham is that the location of the state highway No. 40 has been so changed as to enter Lewisville over and along Mills street instead of Kealy avenue, on which is situated appellant Cunningham's property. He alleges that he had donated part of his land with a view of widening Kealy avenue, as had also appellant Mrs. Whatley, with a promise that highway No. 40 should be located and established over Kealy avenue. He nowhere alleges that any of his property has been entered or taken by the proceedings complained of, nor is it shown that it is beyond the power of the state highway commission to change the route of highway No. 40 over and along Mills street. It nowhere appears that the commissioners' court of Denton county made the change, and the highway commission is not a party to this suit, and in no event could an award of damages be given against it; nor do we know of any rule by which we can hold that the highway commission is estopped from changing the route of highway No. 40 because of a promise made to appellant Cunningham at the time he donated the strip of land he describes on Kealy avenue. No authority in the promisor in that instance is shown, nor, as stated, any want of power in the highway commission to make the change. So that, as stated, appellant Cunningham wholly fails to show any right to injunctive relief as he seeks.
Nor do we think the appellants Whatley show such right. The court found that the only construction done upon the land of the Whatleys was not done by the commissioners court of Denton county, but the facts show it was done under the authority of the highway commission, which, as before stated, is not a party to this suit. The findings show that the commissioners' court instituted the condemnation proceedings involved in this case upon a request of the state highway commission, and by an amendment to article
We accordingly adopt the trial court's findings of fact and conclusions of law, and affirm the judgment.
DUNKLIN, J., absent and not sitting.