The opinion
On original submission of this appeal I came to the conclusion, as reflected by our opinion by Associate Justice Young, that the judgment of the court below should be affirmed, modified, however, by releasing the unnecessary or oppressive mandatory order for appellant to tear down or remove his buildings erected in accordance with permit by the City of Dallas, evidently in view and knowledge of the resident interveners. On motion for rehearing I have reversed my conclusion and am in accord with the opinion by Associate Justice Looney that the judgment of the trial court should be reversed and cause remanded to the trial court for further proceedings, particularly a determination of the issue as to whether the property in question, under all the facts and circumstances, is not suitably situated to be zoned by the City for apartment usage. Manifestly, if the property is not suitable for the purposes as zoned, such should not be zoned, and in doing so, it is confiscation. Appropriate issue was requested and refused by the trial court to determine whether the property was suitable for apartment usage. I am of the opinion such should have been submitted, and the issue determined along with other pertinent issues as reflected by the record, and recied in the dissenting opinion of Justice Looney. *Page 295
Having reversed my conclusion, it follows that the dissenting opinion of Justice Looney becomes the opinion of the court; the original opinion edited by Justice Young thus becomes the dissenting opinion.