On Motion for Rehearing. Either the counsel for appellant and the learned dissenting justice, or the majority of the court, have wholly misconstrued the controlling question presented, by this appeal. In the motion for rehearing and the dissenting opinion, appellant's right to maintain this suit as a representative of the public is entirely based upon the claimed want of authority in the board of commissioners or city council of the city of Galveston to pass the ordinance granting appellee the right or privilege of obstructing a portion of the street of the city designated Avenue Q. The majority of the court do not deem it necessary in the determination of the merits of this appeal to decide this legal question. In so far as this question has any bearing upon appellant's right to the equitable remedy of injunction is concerned, it may be conceded that the ordinance is illegal and void, and yet appellant under the undisputed facts of this case cannot invoke the equitable power of the courts to protect himself or the general public against the claimed illegal exercise of power by the city council in authorizing the closing or obstruction of a portion of the street.
In the first place, no citizen is given the right to maintain a suit of this character unless the obstruction of the street of which he complains will cause special damage to him not suffered by the general public. Shelton v. Phillips (Tex.Civ.App.) 229 S.W. 967. This has been the settled rule of decision in this state since the opinion of our Supreme Court in the case of City of San Antonio v. Strumberg, 70 Tex. 366,7 S.W. 754, and is supported by the highest authorities, including text-writers and the highest courts of other jurisdictions.
In addition to this, the Legislature of this state has limited the right of citizens to maintain a suit of this kind to "the owner or lessee of real property actually abutting on that part of such street or alley actually vacated, abandoned or closed." Acts 41st Legislature (Fifth Called Session) chapter 84, page 257 (Vernon's Ann.Civ.St. art. 4646a).
Whether or not this statute applies to this case in which the act complained of occurred prior to the enactment of the statute, it is an *Page 179 emphatic indorsement by the Legislature of the rule of decision above mentioned.
In the second place, it seems to the majority of the court that, if appellant could be held entitled to maintain this suit for the benefit of the general public, it requires a great stretch of the imagination to construe his petition as a suit by him for the public benefit. His cause of action is primarily to protect his special interest in keeping the street open and unobstructed in its entirety, and his allegations of public injury are only mentioned incidentally in support of his claim of damage and his private right to maintain the suit.
We cannot bring ourselves to accept the proposition that, while appellant is estopped from bringing this suit to protect his private right (and no contention is made in the dissenting opinion that our holding on this question is unsound), he is nevertheless entitled to maintain the suit on the ground that the ordinance authorizing the obstruction of the street is invalid, and appellant as a representative of the public can obtain a mandatory injunction requiring the removal of the obstruction. The cases of Bowers v. City of Taylor (Tex.Com.App.) 24 S.W.2d 816, and Coombs v. City of Houston (Tex.Civ.App.) 35 S.W.2d 1066, cited in the dissenting opinion, have no bearing upon this question and do not militate against the soundness of the trial court's judgment refusing the injunction.
So far as this record shows, appellant is the only citizen of Galveston objecting to or complaining of the ordinance of the city permitting the use of the portion of the street now occupied by appellee hotel company. Appellant by his affirmative consent and agreement to such use of the street, and by keeping silent while the hotel company spent a large sum of money in erecting its improvements in reliance upon his consent to such use of the street, is estopped by every rule of equity from now requiring the removal of the improvements. If the general public feels aggrieved by this obstruction, their complaint will not be heard in a court of equity when voiced only by a self-constituted representative who is estopped to complain on his own account.