Olivares v. City of San Antonio

DIES, Chief Justice. For some time prior to April 10, 1969, the First National Bank of San Antonio had begun plans for the construction of a parking garage. These plans were frustrated because the structure would have to be built over Breneman Street (sometimes referred to as an alley), for many years a dedicated public way in San Antonio. After many meetings by various City departments, the City Planning Commission, and ,the City Council, the latter on April 10, 1969, closed by ordinance a portion of Breneman Street, quitclaimed it to the Bank and received from Bank $16,860. All abutting owners to the closed portion of Breneman Street were apparently satisfied except Joe Olivares, the lessee of the Travis Plaza Hotel, which fronted on St. Mary’s Street. Prior to the closing, Breneman Street extended from St. Mary’s Street, alongside the Travis Plaza Hotel, one block east. Then it intersected south and north, on the south coming into East Travis Street, a one-way street west, and on the north into East Pecan Street, a one-way street east. The ordinance above mentioned closed that portion of Breneman Street east (to the rear) of the Travis Plaza Hotel, as well as the section connecting East Pecan and East Travis Streets. That portion alongside the hotel was not closed and an alley was extended and paved from the rear of the hotel northward to East Pecan Street. Mr. Olivares appeared in opposition to the closing several times before several agencies and meetings, but in vain. The garage was built. Mr. Olivares then filed a suit for money damages against the Bank and the City. He settled his case against the Bank for $35,000, but after conclusion of his suit against the City, the trial court directed a verdict for the City from which Olivares perfects this appeal. The parties will be referred to herein as City, Landowner, and Bank. Landowner’s assignments of error track City’s motion for a directed verdict. We will address ourselves to those urged by City in its brief. In this review, we must view the evidence in the light most favorable to Landowner and must indulge against the court’s action every inference that may properly be drawn from the evidence. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); Kingsley v. Western Natural Gas Co., 393 S.W.2d 345, 351 (Tex.Civ.App., Houston, 1965, error ref. n. r. e.), and 4 Tex.Jur.2d Appeal and Error—Civil Cases § 803 (1959). We first come to grip with the question of whether Landowner has stated a cause of action against City. There is no question but that City had the right to “vacate and abandon and close” the street in question when in the best interest of the public. Art. 1175 § 18, Vernon’s Ann.Civ. St. Art. 4646a, V.A.C.S. allows abutting owners to enjoin such action if they have [924] not released any claim for damages they might have or if they have not been paid compensation through a condemnation proceeding. Dykes v. City of Houston, 406 S.W.2d 176, 181 (Tex.1966). But, when no injunction is sought, as in this case, does Landowner have a cause of action for money damages against City? This is apparently a case of first impression on this question. Dallas Cotton Mills v. Industrial Co., 296 S.W. 503 (Tex.Comm.App., 1927), held that a city may by ordinance close a street, but neither the city nor anyone else may physically close it. See also Blair v. Astin, 10 S.W.2d 1054 (Tex.Civ.App., Galveston, 1928, error ref.); Elston v. City of Panhandle, 46 S.W.2d 420 [Tex.Civ.App.,Amarillo, 1932, error ref. 121 Tex. 553, 50 S.W.2d 1090 (1932)]. Dykes v. City of Houston, supra, upheld the city’s right not to open a dedicated street but denied its right to barricade it after it had been opened by an irate abutting landowner. In this case, City admits that if it had physically closed Breneman Street, it would be responsible in damages to Landowner. However, City says the actual, physical closing was done by Bank, which relieves City. We cannot accept this tenuous argument. City, by passing the ordinance and quitclaiming the street to Bank for $16,860, must share any responsibility in monetary damages to Landowner; and Landowner’s settlement with Bank did not release City. We next consider the question of whether there is any evidence that the closing of that portion of Breneman Street deprived Landowner of material and substantial access to its property. City argues that there is a difference between deprivation of access and impairment of access, citing Collins v. City of San Antonio, 443 S.W.2d 563 (Tex.Civ.App., San Antonio, 1969, error ref. n. r. e.), and City of Houston v. Fox, 444 S.W.2d 591 (Tex.1969). We do not believe these cases foreclose Landowner’s cause of action here. The Collins case said, “[W]e reject plaintiff’s contentions that he is entitled to compensation because the change in Guadalupe Street has resulted in 'circuity of travel’ and diversion of traffic. As long as the abutting owner retains reasonable access to the public highway, he does not suffer compensable damage because the change in design or structure of the highway requires him and those dealing with him to use a more circuitous route in going to and from his premises.” (443 S.W.2d at 566) The Fox case requires material and substantial impairment of a landowner’s right of access before recovery for the loss of value of real estate. The evidence in our case shows that prior to the closing of a portion of Brene-man Street, traffic from East Travis Street had access to the hotel via Brene-man Street. The closing of Breneman Street terminated this access. Testimony was presented that prior To the closing an average of ten cars per day used this access. The availability of this route was a principal reason for Landowner’s executing the lease, for in the hotel business, access “is the first order.” A motor entrance was planned by Landowner and some $15,000 was expended before the closing of Brene-man Street. After the closing, this motor entrance was not feasible. Prior to the Olivares’ lease, the hotel had sustained substantial losses. After Olivares took it over, within four years it began to make a profit, in one year $35,000. An average profit of $50,000 per year could be expected if Breneman Street had not been closed it was said. Testimony was given, and heard without objection, that prior to the closing, the lease in question had a market value of $390,200 which was destroyed by the closing. Viewing this evidence and its inferences in the light most favorable to Landowner, as we must, we believe it shows material and substantial impairment of right to access. [925] City argues that the ordinance in question provided a new alley which affords Landowner access substantially equal to or better than the access afforded by Brene-man Street. As noted before, this new alley, while affording access to Landowner to East Pecan Street, does not afford access to East Travis Street which, from the evidence above noted, Landowner contends is the cause of its damage. City also says that Landowner’s access to and from St. Mary’s Street, upon which its property abuts, has been wholly unaffected by the closing of Breneman Street. There is testimony that in front of the hotel on St. Mary’s Street parked cars and other vehicles make it difficult to stop and unload at this entrance. This testimony was given as an additional reason for the importance of access from Breneman Street. Since we believe this case must be sent back for retrial, it is unnecessary to deal with appellants’ other assignments of error. The judgment of the trial court in directing a verdict for City is reversed and this cause remanded.