195 S.W. 926 | Tex. App. | 1917
This is an appeal from the decree of the trial court dissolving an injunction temporarily restraining appellee from erecting a brick building then under construction upon the public square in the town of Rockwall. The original decree granting the temporary injunction was made in vacation on ex parte hearing.
On final trial the following undisputed facts were developed: The public square, which is the approximate center of the town, is 200 feet square, and was donated, with the streets surrounding it, in 1854 by Elijah Elgin to the town "for the use of *927 the public" forever. At the time of the donation what is now Rockwall county was unorganized. After the organization of the county the county courthouse was erected upon the square, where it has since remained. In the year 1910, by agreement of the county and city authorities, and for the purpose of improving sanitary conditions, the county constructed and has since maintained six water-closets and one urinal in the courthouse, connected with water and sewer pipes extending from the courthouse to the concrete retaining walls inclosing the square, at which point they connect with the water and sewer pipes of the city, and the city has furnished free the water necessary to operate the system so installed by the county. Since installation of the system, the men's water-closet has been maintained on the second floor of the courthouse. Due to overflows and consequent objectionable conditions and injury to the courthouse, it became necessary to make some change. As a consequence the county commissioners entered into a contract with C. Shuman for the construction of a one-story brick building 18 × 20 feet at the northwest corner of the square, upon which work had started when the injunction was granted. One portion of the structure was to be used for storing the county's fuel coal and one portion for men's water-closets in lieu of the one in the courthouse, and was to be constructed in accordance with the best and most approved sanitary arrangements. Consideration of other plans for remedying the condition was before the commissioners' court, among them, the building of a basement, which was not adopted because of its prohibitive cost, approximately $7,000; also the plan of placing the men's water-closet at another place in the courthouse building, which was not done because it was believed the space would soon be required for other purposes. The public square is inclosed by concrete retaining walls rising 2 or 3 feet above the level of the street and filled in with soil, which constitutes the courthouse lawn and on which are shade trees. In addition to the use of the square as a courthouse site, it is also used by the public as assembling and picnic grounds. Appellant owns four brick buildings of the aggregate value of $8,000, immediately west of the square and the proposed building, separated therefrom by Goliad street 110 feet wide. This property, in the opinion of appellant and other witnesses, will be depreciated in value by the erection of the proposed building.
The foregoing are the facts disclosed by the record. There is in the record other testimony which is without force on the issues presented on appeal, since it consists of the opinions of various citizens of Rockwall to the effect that the proposed building will be unsightly, and that the constant use of the water-closets by the public will produce foul and offensive odors, such as to offend the sensibilities of the citizens who use the lawn as a meeting or assembling place and for picnic grounds.
The controlling issue in the case is the contention of appellants that the building proposed to be erected upon the square is inconsistent with the use to which the square was dedicated and is an obstruction thereof, which may be abated as a nuisance. Under the decisions of the appellate courts of this state on similar questions we conclude the contention should be sustained. The leading case is City of Llano v. Llano County,
"Acquiescence is a branch of the law of estoppel and is used to defeat a party's action on the principle of equitable estoppel; that is, it must appear that, because of something that was done, or because nothing was done, the party invoking the estoppel will sustain loss unless it is allowed." 1 C.J. 906.
By such rule it may be that the acquiescence of the public in the erection of the courthouse on the square would estop it of any right to abate such use because of the loss to the county. Asquiescence in a particular unauthorized use, however, would not, in our opinion, conclude the public on an attempted extension of the unauthorized use in which it does not acquiesce and against which it is protesting.
Entertaining the views we do in reference to the issue discussed, all other issues become immaterial, and for that reason will not be discussed.
The judgment of the trial court is reversed, and the cause remanded, with instructions that proper orders be made perpetually enjoining appellee from erecting the proposed building on the public square.