BROWN, Justice.
Appellants being property owners on that certain highway within the city limits of Fort Worth, known as Hemphill Street, brought suit against the members of the Highway Commission of the State of Texas and the City of Fort Worth, alleging that they are owners of improved lots abutting upon said street; that in the year 1902 said city enacted an ordinance requiring all such property owners to set all curbings at the uniform distance of 20 feet from their respective property lines, to construct a sidewalk at least 5 feet in width, and to fill the spaces between the curb and their respective property lines with suitable material and to plant
in such spaces grass,
ornamental shrubs and trees; that the said owners complied with the terms of said ordinance and have expended substantial amounts in the beautification of their said properties and the said spaces between their respective property lines and the curb lines and have planted grass, shrubbery and trees, in accordance with the design of said ordinance, and have thereby added materially to the beautification of said city and of their individual properties.
That thereafter, on February 5, 1904, said city enacted an ordinance “to fix and establish the width of Hemphill Street south of Magnolia Avenue”, the purpose and provision of such ordinance being to fix such width at 45 feet.
That the members of said State Highway Commission and said city authorities have devised some plan and arrangement whereby said Hemphill Street, in front of complainants’ properties, is to be widened and repaved to a width of 54 feet. That such proposed plan is that said city shall furnish the right-of-way for said project and will assume to pay all damages that will arise and accrue to the owners of property abutting on said street by reason of such widening, and said city will reconstruct the sidewalks and curbs, and that the cost of construction of the new paving on said street to said width of 54 feet is to be borne by the State of Texas.
It is alleged that the tearing up of the present sidewalks and “drive-ins” heretofore built by said owners and all of which are adequate, and the destruction of the ornamental shrubs, the grass and the trees heretofore planted by complainants, will cause them irreparable injury and damage and that they have no adequate remedy at law.
It is further alleged that the contract and arrangement thus made between the Highway Commission and said city “is illegal, wholly beyond the authority and jurisdiction of the said parties defendant, and contrary to the laws and Constitution of the State of Texas and the charter of said city”.
That the legal effect of the ordinance which fixed and established the width of the traveled portion of said Hemphill Street, as was done, was to close and abandon all that portion between such fixed width from the fixed curb lines to the property lines of the complainants and to thereby vest in these complainants property rights in the use thereof which such city is estopped from disturbing or denying at this time and under the alleged circumstances; and that the city is barred by limitation of time in its attempt to so disturb same.
That the destruction of complainants’ grass, shrubs and trees will cause a great depreciation in the values of complainants’ properties and the injury done, under the circumstances, is such that complainants cannot be adequately compensated by mere money damages, if defendants are permitted to carry out the said plan and purpose of so widening the said street.
That the fact that the plan and arrangement made and had between the defendants which does not provide for payment to them by the State of Texas for such damages as they may and will sustain, renders the undertaking not only illegal and beyond the authority and power of the defendants to make, but imposes a burden and hardship upon the complainants in that the said city has made no provision in its budget for the payment of such damages and for the levying and collecting of taxes to cover same, and complainants will be put to the necessity of seeking permission to sue the State through the Legislature.
It is further alleged that in doing the proposed work, the several defendants are guilty of a gross abuse of the discretion lodged in them and their acts are arbitrary and capricious and will bring about a useless waste of public funds, in that there is no necessity for the widening of said Hemphill Street and its present width is sufficient for public travel, and travel upon such street can be readily removed by diverting same by way of Pecan Street to South Main Street.
There are other allegations that we will not notice at this time.
Complainants prayed for a temporary injunction and that such relief be made permanent on final hearing. To this pleading defendants answered by urging several special exceptions to the sufficiency of the petition to state a cause of action, and admitted the enactment of the ordinances, the substance of which was pleaded by complainants, and denied specifically all other material allegations in the petition.
Prior to the presentation of the petition, complainants filed an application, under oath, for a change of venue, alleging that, under the circumstances and conditions existent, they cannot obtain a fair and impartial trial in Tarrant County.
The trial court ruled that the application for a change of venue was prematurely filed and that it was not necessary to rule upon same, in that no effort was made to disqualify the trial judge, and that such issue of venue could and would be ruled upon after the trial court considered the several special exceptions urged by the defendants.
All special exceptions were sustained and the trial court ruled that it was apparent that the complainants are unable to state any cause of action and that no good purpose could be served by granting complainants further leave to amend; that they have an adequate remedy at law; and the cause was dismissed. The appeal is from such final order.
The petition not
only
prayed for in-junctive relief but that they “be given all other and further relief to which they may ,be entitled in law or equity”.
It is undoubtedly disclosed that in widening the said street there will not be taken any part of the lots actually owned through due conveyances to the respective complainants, but -that the land to be used is only a portion of that which was originally dedicated for street purposes.
Hemphill Street is now, by reason of a 'change in the main highway and public* thoroughfare leading from the City of Fort 'Worth south, a part of United States Highway No. 81 and State Highway No. 2.
That the Highway Commission of Texas has the authority and power to widen Hemp-hill Street and pave same as a part of the State Highway system of Texas there can be no doubt; and the right to make such a contract as is alleged to have been made by said Commission with the City of Fort Worth is expressly authorized by Article 6673 — b, Vernon’s Texas Civil Statutes.
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BROWN, Justice.
Appellants being property owners on that certain highway within the city limits of Fort Worth, known as Hemphill Street, brought suit against the members of the Highway Commission of the State of Texas and the City of Fort Worth, alleging that they are owners of improved lots abutting upon said street; that in the year 1902 said city enacted an ordinance requiring all such property owners to set all curbings at the uniform distance of 20 feet from their respective property lines, to construct a sidewalk at least 5 feet in width, and to fill the spaces between the curb and their respective property lines with suitable material and to plant
in such spaces grass,
ornamental shrubs and trees; that the said owners complied with the terms of said ordinance and have expended substantial amounts in the beautification of their said properties and the said spaces between their respective property lines and the curb lines and have planted grass, shrubbery and trees, in accordance with the design of said ordinance, and have thereby added materially to the beautification of said city and of their individual properties.
That thereafter, on February 5, 1904, said city enacted an ordinance “to fix and establish the width of Hemphill Street south of Magnolia Avenue”, the purpose and provision of such ordinance being to fix such width at 45 feet.
That the members of said State Highway Commission and said city authorities have devised some plan and arrangement whereby said Hemphill Street, in front of complainants’ properties, is to be widened and repaved to a width of 54 feet. That such proposed plan is that said city shall furnish the right-of-way for said project and will assume to pay all damages that will arise and accrue to the owners of property abutting on said street by reason of such widening, and said city will reconstruct the sidewalks and curbs, and that the cost of construction of the new paving on said street to said width of 54 feet is to be borne by the State of Texas.
It is alleged that the tearing up of the present sidewalks and “drive-ins” heretofore built by said owners and all of which are adequate, and the destruction of the ornamental shrubs, the grass and the trees heretofore planted by complainants, will cause them irreparable injury and damage and that they have no adequate remedy at law.
It is further alleged that the contract and arrangement thus made between the Highway Commission and said city “is illegal, wholly beyond the authority and jurisdiction of the said parties defendant, and contrary to the laws and Constitution of the State of Texas and the charter of said city”.
That the legal effect of the ordinance which fixed and established the width of the traveled portion of said Hemphill Street, as was done, was to close and abandon all that portion between such fixed width from the fixed curb lines to the property lines of the complainants and to thereby vest in these complainants property rights in the use thereof which such city is estopped from disturbing or denying at this time and under the alleged circumstances; and that the city is barred by limitation of time in its attempt to so disturb same.
That the destruction of complainants’ grass, shrubs and trees will cause a great depreciation in the values of complainants’ properties and the injury done, under the circumstances, is such that complainants cannot be adequately compensated by mere money damages, if defendants are permitted to carry out the said plan and purpose of so widening the said street.
That the fact that the plan and arrangement made and had between the defendants which does not provide for payment to them by the State of Texas for such damages as they may and will sustain, renders the undertaking not only illegal and beyond the authority and power of the defendants to make, but imposes a burden and hardship upon the complainants in that the said city has made no provision in its budget for the payment of such damages and for the levying and collecting of taxes to cover same, and complainants will be put to the necessity of seeking permission to sue the State through the Legislature.
It is further alleged that in doing the proposed work, the several defendants are guilty of a gross abuse of the discretion lodged in them and their acts are arbitrary and capricious and will bring about a useless waste of public funds, in that there is no necessity for the widening of said Hemphill Street and its present width is sufficient for public travel, and travel upon such street can be readily removed by diverting same by way of Pecan Street to South Main Street.
There are other allegations that we will not notice at this time.
Complainants prayed for a temporary injunction and that such relief be made permanent on final hearing. To this pleading defendants answered by urging several special exceptions to the sufficiency of the petition to state a cause of action, and admitted the enactment of the ordinances, the substance of which was pleaded by complainants, and denied specifically all other material allegations in the petition.
Prior to the presentation of the petition, complainants filed an application, under oath, for a change of venue, alleging that, under the circumstances and conditions existent, they cannot obtain a fair and impartial trial in Tarrant County.
The trial court ruled that the application for a change of venue was prematurely filed and that it was not necessary to rule upon same, in that no effort was made to disqualify the trial judge, and that such issue of venue could and would be ruled upon after the trial court considered the several special exceptions urged by the defendants.
All special exceptions were sustained and the trial court ruled that it was apparent that the complainants are unable to state any cause of action and that no good purpose could be served by granting complainants further leave to amend; that they have an adequate remedy at law; and the cause was dismissed. The appeal is from such final order.
The petition not
only
prayed for in-junctive relief but that they “be given all other and further relief to which they may ,be entitled in law or equity”.
It is undoubtedly disclosed that in widening the said street there will not be taken any part of the lots actually owned through due conveyances to the respective complainants, but -that the land to be used is only a portion of that which was originally dedicated for street purposes.
Hemphill Street is now, by reason of a 'change in the main highway and public* thoroughfare leading from the City of Fort 'Worth south, a part of United States Highway No. 81 and State Highway No. 2.
That the Highway Commission of Texas has the authority and power to widen Hemp-hill Street and pave same as a part of the State Highway system of Texas there can be no doubt; and the right to make such a contract as is alleged to have been made by said Commission with the City of Fort Worth is expressly authorized by Article 6673 — b, Vernon’s Texas Civil Statutes.
The only matter that confuses us is the allegation that the City of Fort Worth, many years ago, in fact more than thirty-five years ago, enacted the above-mentioned ordinances, definitely fixing the width of the portion of Hemphill Street for actual travel and requiring the abutting property owners to set their improvements at a definite distance back from the curb line so fixed, and requiring such property owners to build sidewalks in front of their properties of a certain width and further requiring such owners to fill in the space between the sidewalks and the said curb “with suitable material” (evidently meaning good dirt) and to plant grass, ornamental shrubs and trees in such space — all of which they allege they have done, at great expense to themselves, and have thereby beautified their properties and said street and greatly added to the values of their properties — which has operated as a partial abandonment of that portion of fee dedicated street which was thus set apart for grass and shrubs and shade trees, and that such official conduct upon the part of said city authorities created a property right in each of the complainants, who acted in good faith thereunder and expended large sums of money in complying with said ordinances and thereby enhanced the values of their respective properties, and the destruction thereof will materially diminish such values and cause the owners serious injury to their rights to the use and enjoyment of such properties.
We doubt that there is merit in the proposition that the enactment of the aforesaid ordinances and the compliance by complainants with the terms and requirements thereof resulted in such an abandonment of a portion of Hemphill Street as that it served to divest the city of its title thereto and invested the complainants with such title to the fee, but we are impressed with the contention that a certain property right — a definite right of user — was created, or vested, in these property owners that cannot be taken from them, under the circumstances, without adequately compensating them therefor.
It will be observed that no attempt at condemnation was made, on the theory that the city is the owner of such fee; but it is likewise true that the pleadings disclose no effort to compensate these property owners for such losses as may be necessarily sustained.
As bearing upon the damages that will be sustained by these property owners, see Southwestern Tel. & Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049.
A very interesting case touching upon the abandonment by a city of a portion of a street is Krause v. City of El Paso, 101 Tex. 211, 106 S.W. 121, 14 L.R.A.,N.S., 582, 130 Am.St.Rep. 831.
This is a strong case and is close akin to the instant suit.
The difference, ás we see it, seems to be that had the city of El Paso succeeded in its demand upon Krause to remove his permanent brick building because it actually encroached upon the public street, the result would have been the destruction of Krause’s property; whereas in the case before us there will be no destruction of complainants’ buildings but a destruction of their grasses, shrubs and shade and ornamental trees, and a consequent serious injury to their respective properties.
We are of opinion that the trial court did not err in refusing to grant complainants the injunctive relief sought; but, having
prayed for “all other and further relief to which they may he entitled in law or equity”, we are of opinion that the trial court erred in dismissing plaintiffs’ suit and in refusing to permit them to amend.
Assuredly they have the right to amend and sue for their damages.
The majority are of opinion that to hold otherwise is to give a more strict construction of the rules governing the right to amend than should be given in this suit, and that to affirm the judgment of the trial court and require the complainants to bring new and different suits for damages will result in the issue of damages being res adjudicata because of the allegations found in the petition and the further rule that a litigant is supposed to have litigated every issue that could have been raised by him in his suit.
The right to a hearing upon the application for a change of venue is not before us, as we view the record, and this right will doubtless he given due consideration by the trial court on a hearing of the merits as touching damages.
Affirmed in part and reversed and remanded in part.