Anderson v. Tall Timbers Corporation

347 S.W.2d 592, 162 Tex. 450, 4 Tex. Sup. Ct. J. 543, 1961 Tex. LEXIS 636

• Court: Texas Supreme Court
• Decided: June 14, 1961
• Docket: A-8244
• Status: Published

Opinions

MR. JUSTICE GREENHILL

delivered the opinion of the Court.

T. D. Anderson and others brought this suit against the Tall Timbers Corporation for a declaratory judgment and for a permanent injunction. The trial court granted a temporary injunction to preserve the status quo pending a trial on the merits of the case. That action was reversed, and the temporary injunction was dissolved by the Court of Civil Appeals. 342 S.W. 2d 452.

The purpose of the suit was to enjoin Tall Timbers from opening or attempting to open a street from Olympia Drive and Westlane in River Oaks in Houston to a 149-unit apartment project of Tall Timbers on the adjacent property. The City of Houston intervened and adopted the pleadings of Anderson. It answered further that if the area in question had previously been dedicated as a street, which was denied, the City had never accepted the dedication. The facts of the case as they were developed are set out, together with a map of the area in question, in the opinion of the Court of Civil Appeals.

In its judgment granting the temporary injunction, the trial court found that a bona fide controversy existed between the parties; that the building of a street in the area would necessarily involve the destruction of a number of beautiful shade trees, would alter the contour and present condition of the land, and would otherwise do irreparable injury to owners of homes in the area.

There is ample authority, and there are sufficient merits and property rights involved, to sustain the action of the trial court in granting the temporary injunction pending the trial of this case. Southwest Weather Research, Inc. v. Jones, (1959) 160 Tex. 104, 327 S.W. 2d 417; City of Lubbock v. Stubbs, (1959) 160 Tex. 111, 327 S.W. 2d 411; Transport Co. of Texas v. Robertson Transports, Inc. (1953), 152 Tex. 551, 261 S.W. 2d 549.

The questions before the trial court were not simple. That court was called upon to decide whether or not there had been a dedication to the public and an acceptance of the dedication by the City, whether there was a private easement with the 6-acre Tall Timbers tract being the dominant estate, and other related matters. The plat of the subdivision had been of record over 20 years; and the area in question, designated on the plat as an easement, had never been opened to public travel. Substantial sums of money had been invested by residents of the River Oaks addition in the building of homes, including the yards adjacent thereto.

Moreover, the City of Houston was made a party to the suit only a few days before the hearing on the temporary injunction. The Senior Assistant City Attorney, Mr. Bouldin, stated to the trial court that the City had just been served with citation at noon on the day before the morning of the trial; that the pleadings already on file were voluminous; and that the City had not had an opportunity to prepare pleadings. He, at that time, orally adopted the pleadings of the plaintiffs. Speaking for the City, he joined with the plaintiffs in asking that the temporary injunction be granted to preserve the status quo. It was his contention that it was the power and duty of the City to determine what streets should be opened, to supervise the manner of the opening, and the construction of the street. He argued that there was good reason for this including, among others, the proposition that the City is liable in damages for failure to keep the streets which are opened in a reasonably safe condition; that the City should be consulted before the defendants be allowed to open the “street” in question if it was a street. He pointed out that it was the policy of the City to not accept land for street purposes which was not 60 feet in width. The “easement” or “street” in question is 40 feet in width. There was a city ordinance which made it a penal offense to open a street without the consent of the City. That consent had not been obtained.

After the attorney for the City finished his argument to the court urging the entry of the temporary restraining order to preserve the status quo, the court stated, “All right. The temporary injunction is granted.” Thereafter an argument ensued over the amount of the bond, and the court fixed it at $50,000. Counsel for defendant took his exception to the ruling of the court. After this had all been accomplished, the temporary injunction granted and bond set, counsel for defendants stated that he wasn’t aware that the City was going to take an active part in “the hearing.” He then said, “I would just like to say in open Court, for Mr. Bouldin’s [the City Attorney’s] benefit, that the notice of this hearing beat the [defendant’s] contractor to the City with his application for a permit under the ordinances pertaining to private works in public streets. We did not pursue that for the reason that it seemed useless to do so, with this hearing scheduled.” The Court of Civil Appeals treated this statement as a disclaimer to the court of any intention to violate the provisions of the ordinance. The statement was made for “Mr. Bouldin’s benefit” and came after the court had made its ruling. The trial court is entitled to have the appellate court pass upon the question of abuse of his discretion as of the time he rules. We think under facts and circumstances, he did not abuse his discretion in granting the temporary injunction to preserve the status quo until the case could be tried on its merits.

This opinion is not to be construed as passing on the merits of the case in any respect. Its sole function is to uphold the action of the trial court in granting the temporary injunction.

The judgment of the Court of Civil Appeals dissolving the temporary injunction and remanding the cause is reversed, and the temporary injunction entered by the trial court is reinstated.