Although neither defendant below plead reliance on the claim of the hotel company alone that plaintiff consented to its permanent appropriation of the public street for exclusively private uses, the city nowhere even venturing the mention of any such matter as a defense, and the hotel company wholly failing to specifically allege its having at the time relied upon it, both on the contrary expressly declaring upon the ordinance as a valid exercise of the city's power under its charter to authorize their doing that by the method of concert they in fact pursued, this court still declines to determine whether or not that was a lawful joint enterprise; if silence does not give consent that it was not, the authorities cited in the original dissent supply the deficiency.
So that, the whole undertaking having been ab initio illegal, null, and void, the parties to it must be held to have then been charged with knowledge of that fact, whatever they actually knew, since ignorantia juris non excusat; however, it is self-evident, from their contemporaneous indemnity contract wherein Mr. Moody agreed to hold the city harmless against all damnifying consequences to it from their jointly undertaking to so perpetually close part of the street, that both in advance anticipated at least the possibility of the venture's being illegal. In any event, it being so, as the Supreme Court said on rehearing in Bowers v. City of Taylor, 24 S.W.2d 816, at page 817: "The ordinance being void, no rights accrued to the railroad company thereunder, and its closing the street without lawful right renders it liable to whoever may sustain loss or damage."
In that case the entire public of the city of Taylor had consented to the surrender of the use of the street by voting in advance overwhelmingly in favor of authorizing it.
Who sustained loss, or damage, or the deprivation of a vested right, in this instance? Indisputably both the appellant and the other members of the general public, especially those who were also abutting owners on this street.
Notwithstanding the trial court's particular statement of a finding on that precise phase of the controversy, it appears from the other findings made, common knowledge, and the undisputed evidence, under well-settled authority in this state, as a matter of law, (1), that appellant must have suffered a loss different from that of any other member of the public, whether an abutting owner or not, in that his immediately abutting property alone was situated directly across from the obstructing two-story building, and ran west parallel with it much of its entire 125-foot projection from the thereby choked-down mouth of Avenue Q at the corner of Twenty-Second street, such obliteration of that much of a public street so serving his individual premises for greater convenience of access, light, and air, necessarily being a complete "taking" of his peculiarly appurtenant property right for all purposes in it for the private use of another within the meaning of our Constitution; (2) that the different right of the rest of the general public merely for passage back and forth over it, inclusive of any who may have been more remote abutting owners, to have that portion of the street always kept open for their use as such was *Page 180 likewise "taken" as for perpetual deprivation. See citations in former dissent; also, Bowers v. City of Taylor (Tex.Com.App.) 24 S.W.2d 816,819; Quanah, etc., Ry. Co. v. Swearingen (Tex.Civ.App.) 4 S.W.2d 136; Radford Grocery Co. v. City of Abilene (Tex.Com.App.) 34 S.W.2d 830,831.
In the case last cited, on a state of facts in legal purport the same as here obtains, the Commission of Appeals in effect upheld the conclusions just stated in this declaration of the law: "We do not think that a right in the company, to have the platform remain in the street, is shown by the evidence. The platform is a permanent structure and it occupies a portion of a public street that is designed for pedestrian travel. This appears without dispute; and the evidence leaves no room for a reasonable conclusion that the platform does not materially interfere with the use, by foot travelers, of that portion of the street covered by the platform. Primarily, the platform was erected and is being used by the company for private purposes. Granting that the city council, in 1905, did give the company permission to erect and maintain the platform in the street, as testified by the company's president, still such permission, even if given by formal action of the city council, did not invest the company with a permanent property right in the street. The city was without power thus to surrender its authority over any portion of the street or to authorize the company permanently to appropriate to a private use the part of the street upon which the platform stands. San Antonio v. Rische (Tex.Civ.App.) 38 S.W. 388 (writ refused); Bowers v. City of Taylor (Tex.Com.App.) 24 S.W.2d 816; 2 Elliott, Roads Streets, §§ 828-840; 13 R.C.L. p. 169."
Such being the state of this record, upon what ground can injunctive relief, at least against the city of Galveston, be denied appellant? Certainly not upon the claim that he was restricted to an action at law in damages against either defendant; that question being directly settled in Texas the other way on rehearing in the Bowers Case, supra, where the right to injunction against each defendant was upheld, irrespective of a like alternative count for damages. In closing that opinion the Commission of Appeals, after first quoting approvingly from American, etc., Co. v. Seelig, 104 Tex. 16, 133 S.W. 429, and Southwestern Telegraph Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049, held as follows:
"In Ort v. Bowden (Tex.Civ.App.) 148 S.W. 1145, 1148, the trial court charged the jury that, although a special injury might be sustained because of a public nuisance, the remedy is by suit for damages, if it can be so compensated. The Galveston Court of Civil Appeals, on the authority of Kalteyer v. Sullivan [18 Tex. Civ. App. 488, 46 S.W. 288], and S.W. Tel. Tel. Co. v. Smithdeal, questioned this statement of the law and held that a citizen who suffers a special injury is not without remedy, in case the city fails to respond to its duty, nor is he remitted to an action for damages alone, although the injury suffered by him may be compensated in damages. The court further remarks: `Certainly the citizen so injured would not be required to wait for the city to act, when the city itself has consented to the doing of the very thing which has caused the damages and without which consent the very thing would not and could not have been done, and also when, in the very suit in which the citizen asks for the correction of the wrongs from which he suffers special injury, the city joins with the other alleged wrongdoers in asking that the correction be denied.' To the same effect is Boone v. Clark (Tex.Civ.App.) 214 S.W. 607.
"And in Quanah Acme P. Ry. Co. v. Swearingen (Tex.Civ.App.)4 S.W.2d 136, the doctrine is approved that the owner of land abutting upon a street or alley, one end of which is obstructed so that he cannot have egress from his property to other streets in that direction, suffers an injury peculiar to himself by reason of the public nuisance.
"In Blair v. Astin (Tex.Civ.App.) 10 S.W.2d 1054, it was held that injunction will issue to prevent the closing of a street by a common source proprietor under a plat designating such street, even though the city had by deed undertaken to relinquish its public easement for street purposes in such street.
"The latter line of cases are controlling authority in this case."
If, then, this ordinance, like the one there stricken down, was void, the city of Galveston as one of the severally sued defendants, having pleaded no other defense, and being left powerless to so abdicate its proper functions as to permit, much less connive at or contract for, the private appropriation of the use itself of this street, stood before the court without excuse for not having lived up to its trusteeship for all the public by affirmatively preventing such an invasion.
Neither can the writ sought be withheld as to either appellee, as seems to me, because of the Act of the 5th Called Session of the 41st Legislature, Chapter 84, page 257 (Vernon's Ann.Civ.St. art. 4646a), invoked for the first time in the majority opinion on rehearing. That statute, perhaps enacted in an effort to obviate the effect of the Supreme Court's holding in Bowers v. City of Taylor, supra, finally decided on February 19, 1930, was approved April 4th of 1930, but did not become effective until 90 days after adjournment of the Legislature on March 20 of 1930, or on or about June 18th of 1930, whereas the judgment below in this cause had been entered on January 29th of 1930, and the appeal to this *Page 181 court perfected on February 13th of 1930; so that, if ever, it did not become a law until more than four months after this court's appellate jurisdiction had attached herein. Moreover, its terms wholly fail to indicate any intention whatsoever on the Legislature's part that it should apply to or affect then pending litigation, wherefore, under the settled law, it may not be given such a retroactive effect. Mellinger v. Houston, 68 Tex. 37, 3 S.W. 249; De Cordova v. City of Galveston,4 Tex. 470; Galveston, H. S. A. Ry. Co. v. Wurzbach (Tex.Civ.App.)189 S.W. 1006; McCutcheon Church v. Smith (Tex.Civ.App.)194 S.W. 831, 835.
Furthermore, there is, vel non, grave doubt of its constitutional validity, since its provisions appear to me to contravene not only the affirmative grant of power in section 8, article 5, of our State Constitution, to the district courts to issue writs of injunction, but all those other provisions of that instrument as well that in effect guarantee protection to the owner against the "taking" of his individual property rights for the private use of others. Certainly, by all the authorities, the right of all abutting owners to use the whole of a dedicated public street, with reference to and on the faith of which they have bought, whether or not they are such on that particular "part of such street or alley actually vacated, abandoned or closed," is as much an appurtenant property right as their adjoining lots, and I think it may not thus be taken away. Finally, this act also dogmatically essays to make the separate rights of such abutting owners to injunction and to damages interdependent — a thing our Supreme Court had just held in the Bowers v. City of Taylor Case might not be done, as pointed out in the original dissent.
In the view here taken, the controlling inquiry throughout has been whether or not in the circumstances otherwise undisputedly appearing the appellee hotel company's exclusive plea of estoppel from consent, on its merits, presented any defense, and that, since it did not for the reasons already given, while appellant's objections to the testimony under it, without his having previously excepted because it lacked the averment of reliance thereon, should have been sustained and the proof excluded, conformably to the rule as thus applied in Patterson Wallace v. Frazer (Tex.Civ.App.) 79 S.W. 1077: "It is only where pleadings are wholly defective, and show no cause of action or no defense, that objections to testimony, because of the insufficiency of the pleadings, ought to be entertained" — the whole matter, being intrinsically impotent anyway, became immaterial.
Equally ineffective was the included averment in this plea that appellant "had actual notice of the passage of said ordinance," which also the trial court found to be a fact, under the principle stated by the Maryland Court of Appeals in Townsend v. Epstein, 93 Md. 537, 49 A. 629, at page 634, 52 L.R.A. 409, 86 Am. St. Rep. 441: "It is not perceived how the failure to object to an ordinance which we find to be invalid and inoperative could give to the ordinance validity or effect, or authorize an act which, with or without the ordinance, was unlawful, and a public nuisance."
That appellant plainly sued as a member of and for the benefit of the public, as well as for himself individually, is reiterated; his petition, which is in the record, is shot through from paragraph XI to its close with averments that, when given the benefit of reasonable intendments, as must be done in the absence of any properly raised objection, can reasonably, it seems to me, import nothing else. Indeed in paragraphs XII, XIII, XVI, XVII, XVIII, XX, XXI, and XXII, he directly so alleges as follows:
"By the terms and conditions of said illegal contract and said illegal ordinance, it is attempted to grant and give to the said W. L. Moody, Jr., his successors or assigns, the exclusive use and occupancy of that part of said Avenue embraced in said ordinance as against the plaintiff and plaintiff's tenants, servants and employees, and as against plaintiff individually, and as a member of the general public, and as against the general public, for the term of an indefinite period of time amounting to fee simple title."
"The above named defendants and each of them purporting to act under and in pursuance of said illegal contract and illegal ordinance, have closed a portion of Avenue Q * * * and said act of closing being to the exclusion of the plaintiff, his agents, servants, tenants and employees, and to the exclusion of the public; and said defendants have blocked and barricaded the same, * * * so that the plaintiff, his agents, tenants and employees and the public in general, can no longer use the same or any portion thereof, for any purpose whatsoever, and that the said defendants * * * are appropriating said public property and designated street to their own purposes, occupancy and profit."
"That no power exists or is given or granted in or by the City Charter of said City of Galveston * * * to exclude plaintiff as the owner of said abutting and contiguous lands and as a member of the general public from the use and enjoyment thereof. * * *
"Because plaintiff, as the owner of the land and property abutting on and contiguous to said street, as well as being a member of and constituting a part of the general public, along with the other members of the public generally, has and holds a vested right in and to the use of said street, and the whole thereof for its entire seventy (70) foot width, and *Page 182 which said right cannot be lawfully taken away from plaintiff, or the public generally."
"Plaintiff avers that by the closing of a portion of Avenue Q, as aforesaid, by defendants, the use by the public of Avenue Q will be restrained in that the whole of the south sidewalk of Avenue Q will be indefinitely, probably forever, permanently blockaded, discouraging pedestrians from entering along Avenue Q, and creating an unsightly and objectionable projection in front of plaintiff's property, and that the public generally will be prohibited and barred from using the south sidewalk of said property, lessening its value as a public thoroughfare and lessening its usefulness to the public generally, and to the plaintiff as a property owner, and as a member of the general public, * * * so that Avenue Q, in its application by virtue of said encroachment, on the street, has been not only closed and barred against the public use for a portion of same, but the remaining portion of same, by virtue of such encroachment and use, has been relegated to the use as an alley-way and garbage disposal-way; and as the back yard of a kitchen and furnace room, and plaintiff avers that if that portion of Avenue Q aforesaid, is kept closed by the defendant, the convenient access to the public to and fro along Avenue Q, will be forever barred."
"Plaintiff further alleges that said illegal ordinance was passed or said illegal contract was given * * * in entire and utter disregard to the rights of this plaintiff and his property, either as an owner of said property, or as a member of the general public, and without regard to the rights of any other citizens and property owners of said City who live along, use and occupy, or who own business property on the said Avenue Q; and that the said defendants and each of them * * * unless restrained by this court, will continue to keep that portion of Avenue Q named in said illegal contract, closed as against this plaintiff and the general public * * * so that same cannot be used either by this plaintiff or the general public."
"That said illegal ordinance and contract, by abandonment of said property, amounts to the destroying of the use of that portion thereof, by the plaintiff, and by the public generally, for an indefinite period of years * * * and unless defendants are required to re-open the said portion of said Avenue Q to the use of plaintiff and the public generally, plaintiff will suffer irreparable damages, wrongs and injuries to his property and property rights. * * *
"Wherefore, this plaintiff prays that this Honorable Court issue its most gracious writ of injunction against the defendants and each of them * * * commanding them and each of them to leave said Avenue Q open for use by the plaintiff and by the plaintiff's agents, servants, employees, tenants, and guests, and by the public generally."
Obviously a merely empirical expression of opinion to the contrary cannot prevail against these unchallenged averments of the pleader himself.
Wherefore, the consent as found by the learned trial court should not be held to work an estoppel against appellant's suit to protect both a public and a private property right, because: (1) It was a consent to the doing of a thing both parties must be held to have known was unlawful, that is, the maintenance of a continuing nuisance both public and private in character; (2) the city neither pleaded it at all, nor could have been absolved thereby of its bounden duty to prevent the encroachment, if it had; (3) the hotel company did not actually aver reliance on it, nor could have acquired any right to "take" any part of the public street for its exclusive and permanent private use, if it had; (4) the pleadings and proof otherwise established a clear right in appellant to the injunctive relief he sought, at all events in his capacity as a suitor in behalf of the rest of the public, and as against the city of Galveston.
To that end the motion for rehearing, in my opinion, should have been granted.