Home/Texas Supreme Court/City of Waco v. Texland Corporation

City of Waco v. Texland Corporation

446 S.W.2d 1, 12 Tex. Sup. Ct. J. 551, 1969 Tex. LEXIS 305
CourtTexas Supreme Court
DecidedJuly 30, 1969
DocketB-871
StatusPublished
Cited by92 cases

This text of 446 S.W.2d 1 (City of Waco v. Texland Corporation) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Waco v. Texland Corporation, 446 S.W.2d 1, 12 Tex. Sup. Ct. J. 551, 1969 Tex. LEXIS 305 (Tex. 1969).

Opinions

[2]*2STEAKLEY, Justice.

Texland Corporation and W. M. Kelly filed separate suits against the City of Waco for damages to their property which they alleged was caused by the construction of a viaduct on South 17th Street. The trial court consolidated the two suits for a jury trial. A jury found that Texland’s property was damaged $9,500.00 and Kelly’s property was damaged $6,000.00. The trial court judgment for Texland and Kelly in these amounts was affirmed by the Court of Civil Appeals. 425 S.W.2d 374. We agree that these properties have been damaged for a public use under Section 17 of Article 1 of the Constitution of Texas, Vernon’s Ann.St., which provides:

“No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made * *

In DuPuy v. City of Waco, 396 S.W.2d 103 (Tex.Sup.1965), we reaffirmed the settled rule in this State that an abutting property owner possesses an easement of access which is a property right; that this easement is not limited to a right of access to the system of public roads; and that diminishment in the value of property resulting from a loss of access constitutes damage. We wrote further in DuPuy that (a) the concept of damaging under the Constitution does not embrace a right to compensation where a property owner has reasonable access to his property after construction of the public improvement; and (b) the resolution of the problem of whether access has been so impaired that it can properly be said that the private easement in the street has been damaged is a threshold question of law for determination by the Court. Our continuing study of this admittedly difficult problem1 has led to the conclusion that the first of the corollary rules just stated should be modified2 to hold that property has been damaged for a public use within the meaning of the Constitution when access is materially and substantially impaired even though there has not been a deprivation of all reasonable access; as before, this is a question of law for the Court.

These are the facts of impairment here. South 17th Street in Waco runs generally in a north-south direction and was the primary means of ingress and egress to the properties. In November of 1961, the City of Waco commenced the construction of a viaduct - along South 17th Street for the purpose of elevating vehicular traffic over railroad streets and crossings. South 17th became a street with an upper and a lower level upon completion of the viaduct. We are concerned only with access to the properties from the lower level on which both the Texland and Kelly properties front. As depicted on the accompanying diagram, the properties are situated directly across the street from each other, Texland being on the west side and Kelly being on the east side of the street. [4]*4The viaduct which composes the upper level of South 17th Street is above the level of the roofs of the structures located on the properties. The north side of both properties is bounded by Mary Avenue, an east-west street which remains as it was. The Texland property is bounded on the north by Mary Avenue and on the east by the lower level of South 17th Street. The Kelly property is bounded on the north by Mary Avenue and on the west by South 17th Street. The viaduct is supported by piers which are located along the sides of lower South 17th Street. Each pier is five feet in diameter. From center to center, the piers are spaced north and south along the sides of the street each sixty-five feet. This means, however, that from the side of one'pier to the side of the next one, there is actually only sixty feet of clearance. The piers, spaced in this manner, extend along the Texland side and the Kelly side of lower South 17th. The traversible opening for vehicles moving along the street is approximately twenty-two feet. Both the Texland and Kelly properties extend along South 17th Street for a distance of 165 feet. Three piers are located alongside each of the properties.

[3]

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Bluebook (online)
446 S.W.2d 1, 12 Tex. Sup. Ct. J. 551, 1969 Tex. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-waco-v-texland-corporation-tex-1969.