City of San Antonio v. Pigeonhole Parking of Texas, Inc.

Mr. Justice Griffin,

joined by Justice Smith, dissenting.

The fundamental difference in my viewpoint and that of the majority, as I see it, is that I believe the Texas law, and the law in a vast majority of the other states, is to the effect that the right of ingress to Houston Street is property while the majority opinion treats it as a license, or privilege, which may be taken away from the lot owner by the City under its police power, and without adequate compensation being paid. I believe the right of ingress and egress to Houston Street is as much a property right as is the soil constituting the lot on which the City permitted Pigeonhole to erect its storage garage. Everyone would agree that should the City decide to widen Houston Street under its police power, it could not deprive Pigeonhole of the south 10 feet of its lot without making adequate compensation for such property. The majority relies on the power of the City to control the use of property by its zoning ordinances passed in the exercise of police power. I have no quarrel with the zoning ordinances of cities. Zoning is only a regulation of the use of property and not a deprivation of property. I take it to be fundamental and it requires no citation of authorities that a city or other public body may not take a person’s property without paying adequate compensation therefor, except in the event of fire, flood, earthquake, etc. amounting to a major disaster. We have no such case here.

Is this right of ingress and egress property, or is it a mere privilege or license as treated by the majority opinion? “The *328 word ‘property’, as used in the section of the constitution referred to [Art. 1, Sec. 17] is doubtless used in its legal sense, and means not only the thing owned, but also every right which accompanies ownership and is its incident.” Gulf, C. & S. F. Ry. Co. v. Fuller, (1885), 63 Texas 467, 469 .

“The ownership of the lot abutting upon the street carried with it as property the right of free and unimpaired access thereto and egress therefrom, and whatever impaired that right and caused a depreciation of the value of the lot constituted damage to the lot within the meaning of the Constitution. O’Brien v. Central Iron Co., 158 Ind. 218 , 63 N.E. 302 , 57 L.R.A. 508 , 92 Am. St. Rep. 305 ; Gulf, C. & S. F. R. R. Co. v. Fuller, 63 Texas 467 .” Powell v. Houston & T. C. R. Co., 1911, 104 Texas 219 , 135 S.W. 1153 , 46 L.R.A. (N.S.) 615.

Adams v. Grapotte, Texas Civ. App., 1934, 69 S.W. 2d 460 , aff., 130 Texas 587 , 111 S.W. 2d 690 , with express approval of the opinion of the Court of Civil Appeals on the issues of law involved in this case, says:

“* * * Access to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property passing to the lessee. That right cannot be taken for public purposes or destroyed without adequate compensation being made therefor. Const. art. 1, Sec. 17; Gulf, C. & S. F. Ry. v. Allbright, 7 Texas Civ. App., 21, 26 S.W. 250 ; McCammon & Lang Lumber Co. v. Trinity & B. V. Ry. Co., 104 Texas 8 , 133 S.W. 247 , 36 L.R.A. (N.S.) 662, Ann. Cas. 1913E, 870; Anzalone v. Metropolitan District Commission, 257 Mass. 32 , 153 N.E. 325 , 47 A.L.R. 897 , and the annotation following same; 13 R.C.L. p. 142 et seq., Sec. 125; 44 C.J. Sec. 3711, p. 493, et seq. * * *”

At the time the application for permit was filed the sections of the ordinance in force and controlling were:

“Sec. 52-162. Permit required to excavate.

“It shall be unlawful for any person, his agents, servants or employees to dig, plow, blast or make cuts, openings or excavations for any purpose in any street, plaza, sidewalk or other public place in the city without first having made application and obtained a permit therefor. (7-11-18, Bk. F. p. 328.)”

“Sec. 52-170. Issuance of permit.

*329 “Every person making application for a permit in accordance with the provisions of this article, and having complied with such provisions shall be entitled thereto, and, upon filing such application with the city engineer, it shall be his duty to issue such permit, when the provisions of this article shall have been complied with. (7-11-18, Bk. F. p. 328.)”

The ordinance passed on February 23, 1956 is as follows:

“No permit shall be issued for construction of any curb cut or driveway leading on to those portions of Commerce and Houston Streets which lie between Main Avenue and Alamo Street.”

The stipulation sets out that the application for the permit filed January 23, 1956 “was in due, proper, and legal form” and made to the proper official, or officials. This permit was refused prior to February 14, 1956. Under the provisions of the two sections of No. 52, set out above, it became the ministerial duty of the City engineer to issue to respondent a permit to cut the curb and construct a driveway on Houston Street. The City had the right to select the location of such driveway and to make other reasonable regulations and requirements regarding the manner and method of construction.

The next question arising is: Was the City, by virtue of the provisions of the ordinance prohibiting curb cuts and driveways on Houston Street, passed February 23, 1956, empowered to refuse respondent’s application? That the City can make reasonable regulations with regard to the place, manner and method of construction of driveway is not questioned. This requires no citation of authority, for such regulatory power is universally recognized. The City claims that under its police power it can prohibit the construction of the driveway; and, further, that the mandamus should not be granted because respondent has ingress and egress to and from his parking garage on the Soledad Street side. The general rule, as we have shown above, is that the right of ingress and egress to a public highway is an incident to the ownership of land abutting thereon, and the right to such access is private property which cannot be taken for a public purpose or destroyed without adequate compensation being made therefor, except in a valid exercise of the police power. Oriental Oil Co. v. City of San Antonio, 1919, Texas Civ. App., 208 S.W. 177 , 1st col. p. 181; Gulf Refining Co. v. City of Fort Worth, Texas Civ. App., 36 S.W. 2d 285 (4-5), reversed on other ground, but this point is recognized, *330 55 S.W. 2d 792 , l.c. 793 and 794; Bacich v. Board of Control of California, 1944, 23 Cal. 2d 343 , 144 Pac. 2d 818 (11, 12) ; Brownlow v. O’Donoghue, 1921, 51 App. D.C. 114 , 276 F. 636 , 22 A.L.R. 939 and Note 942; Anzalone v. Metropolitan District Commission, 257 Mass. 32 , 153 N.E. 325 , 47 A.L.R. 897 , and Note 902; City of Shawnee v. Robbins Bros. Tire Co., 1928, 134 Okla. 142 , 272 Pac. 457 , 66 A.L.R. 1047 and Note 1052; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89 , 286 Pac. 353, 359 ; Newman v. Mayor of City of Newport, 73 R. I. 385, 57 Atl. 2d 173; Howell v. Board of Com’rs. for City of Quitman, 169 Ga. 74 , 149 S.E. 779 ; Royal Transit, Inc. v. Village of West Milwaukee, 266 Wisc. 271, 63 N.W. 2d 62 ; Goodfellow Tire Co. v. Commissioner of Parks and Boulevards of City of Detroit, 163 Mich. 249 , 128 N.W. 410 , 30 L.R.A. N.S., 1074 and notes thereto; 39 Texas Jur. 593, Sec. 56; 25 Am. Jur. 448 , Sec. 154; 39 C.J.S. pp. 1079, 1081, Sec. 141; McQuillen, Municipal Corporations, 3rd Ed., Vol. 10, pp. 657-658, Sec. 30.56; Idem, pp. 669, 671, Sec. 30.63; Idem, Vol. 11, pp. 142, et seq., 30.193; American Law of Property, Vol. II, pp. 492, et seq., Sec. 9.54.

The majority hold that where a lot has access from one street it becomes a matter of the reasonableness of the use of another driveway to a different street, and the action of the City Council is determinative in the absence of a showing that it acted in an arbitrary, unreasonable or unjust manner in passing the ordinance. Also it contends that since respondent has access on Soledad Street there is no taking of property by refusal of access to Houston Street. A city has police power to protect the safety of the public from traffic hazards and may enact ordinances for such purposes so long as the ordinances do not violate the Constitution or the laws of this State, and are not unreasonable and arbitrary. Town of Ascarate v. Villalobos, 1949, 148 Texas 254 , 223 S.W. 2d 945, 1 .c. 950 (5-7). The presumption is in favor of the validity of any ordinance and the party attacking the same has the burden of showing its invaliidity. “* * * The action of the governing body of a city in passing an ordinance is final and conclusive, and cannot be revised by the courts, unless it is clearly made to appear that their action toas arbitrary, unreasonable, and a clear abuse of power. * * *” The validity of an ordinance is a question of law for the court. Town of Ascarate v. Villalobos, supra, 950 (8-10), (11, 13) and authorities therein cited.

The case of City of Abilene v. E. P. Woodlock, et al, 1955, Texas Civ. App., 282 S.W. 2d 736 , ref. wr. of cert. denied; 1956, 351 U.S. 925 , 76 Sup. Ct. Rep. 782, 100 L. Ed. 1455 , in discuss *331 ing the question of reasonableness of a city ordinance quotes from 30-A Texas Jur. 364, as follows:

“ ‘* * * to be valid as an exercise of this power, [police] an ordinance must be reasonable in its operation upon the person whom it affects, and must not be unduly oppressive — that is, it must appear that the means adopted are reasonable, necessary and appropriate for the accomplishment of a legitimate object falling within the domain of the police power.’ ”

I feel that the ordinance passed on February 23, 1956 is unreasonable and oppressive in that it prohibits ingress and egress from Houston Street rather than regulating such ingress and egress.

In the case of Newman v. Mayor of City of Newport, (1948), 73 R.I. 385 , 57 Atl. 2d 173, 177, permits were sought for driveways from plaintiff’s property which abutted on three separate streets. The court quashed the record of the action of the Commissioner of Public Works, and the approval of the aldermen denying petitioner’s permission to construct driveways. The effect of the action was to return the case to the Commissioner and aldermen to grant the application for permits at places on the three streets as may be deemed reasonable. This case sets out the theory of those courts which hold an owner cannot be denied access to one or more streets merely bcause he has access from his property to another street. The court says:

“We will now turn to a consideration of the constitutional question raised by petitioners. A brief and general discussion of the following points will be of assistance: first, the right of an abutting property owner of access from the highway; and, secondly, the intended purpose of the ordinance. The right of impress to and egress from a highway to one’s land is not a mere privilege; it is a property right appurtenant to the land. Subject to reasonable regulation in the public interests, such a right cannot be taken away or materially impaired even under statutory authority without just compensation. Allen & Reed, Inc. v. Presbrey, 50 R.I. 53 , 144 Atl. 888 . We see no need for further citation of individual cases on this point as many of them, to the same effect as the Allen & Reed, Inc. case, are to be found in the annotation ‘Power to regulate or prohibit driveways across sidewalks.’ 22 A.L.R. 942 , 66 A.L.R. 1052 . To the same effect sec. 39 C.J.S. Highway, Sec. 141; 3 Dillon, Municipal Corporations, 5th Ed. 1607, Sec. 1016; 2 Elliott, Roads and Streets, 4th Ed. 1152, Sec. 882, 1168, Sec. 891.

*332 “Pedestrians on the highway are entitled to reasonable protection from the usual and known dangers due to vehicular traffic. In the exercise of its police power the state, either directly or by delegation of such power to a municipality, may enact or authorize the enactment of laws to attain this end, provided that private property is not in effect confiscated under the guise of regulation. An owner of property in a populous city or growing community is bound to appreciate that, for the common welfare and public safety, the use of his land may be restricted by reasonable regulation. But, although safety in the use of highways is a matter of serious public concern, yet a municipality cannot disregard the property rights of an owner of land abutting on a highway to the extent of denying him a reasonable access to his property for a permitted and lawful purpose.” (Emphasis added).

The Court also held the action of the Commissioner and Board, in limiting petitioner to the one driveway on only one street which was in existence at the time of the filing of the application, was arbitrary and illegal. Further, the Court says: “* * * They [City] then argue that since the Newmans already have a driveway to their property, they do not need any additional driveways to serve the structures presently thereon. This argument overlooks the fact that, in the absence of reasonable restrictions duly imposed by law an owner of land is entitled to use or sell his land for any lawful purpose. The adequacy of ingress and egress is an important element in fixing the valuation of land that is adopted and intended to be used for a lawful purpose. * * *”

Under all the authorities every owner of an interior lot in this same block and abutting on Houston Street with respondent can be denied his right of access thereto by the City, only by payment of just compensation. To hold that respondent’s right of access to Houston Street can be denied without paying for it would be an unjust discrimination against respondent, and denial of equal protection under the law.

The majority view is the minority rule in the United States. The case most relied upon for the majority’s position is the case of Farmers-Kissinger Market House Co. v. City of Reading, 310 Pa. 493 , 165 Atl. 398 , which holds that where a market house has adequate access by entrances to one street it is not a deprivation of property under the 14th Amendment of the United States Constitution to refuse entrance driveways into a very busy and heavily traveled street. The property of the *333 Market House Co. abutted on Penn Street and extended through the entire block so as to abut on Cherry Street. On this property the Market House Co. had erected a large garage. The garage fronted on Cherry Street and had an entrance from Cherry Street. Market House Co. was seeking an entrance to the garage from Penn Street so customers could drive across the block to the Cherry Street garage.

The City relies upon the case of Fowler v. City of Nelson, (1923), 213 Mo. App. 82 , 246 S.W. 638 . That case holds that the city may prohibit an owner of property abutting on a street from using a driveway to the street, where there is an alley upon which the property abuts which affords access. The court below rendered judgment for the city and it was affirmed. In the opinion the court says: “* * * The testimony shows that he unloads much of his incoming stock on the sidewalk in front of his store, * * *and “* * * We do not understand that he [plaintiff] charges that he has not access to his property from the street * * I do not find the facts of that case similar to those in the case at bar. Furthermore, this Court in Powell v. Houston & T. C. R. Co., 104 Texas 219 , 135 S.W. 1153 , 46 L.R.A., N.S. 615, approves the following quotation from Lewis, On Eminent Domains, with regard to the rights of abutting owners: “The conclusions thus stated in the first edition have been verified by numerous decisions since rendered, and, we believe without dissent, except in the case of Mo., * * This we construe to be an expression by this court, contrary to the Missouri rule.

I would affirm the judgments of the trial court and the Court of Civil Appeals.

Opinion delivered February 26, 1958.

Rehearing overruled April 9, 1958.