I find myself out of harmony with the majority on the disposition of this case. As is obvious, the record is quite voluminous, but I think a clear understanding of the nature of the case can be ascertained from the majority opinion by Associate Justice Young. The City brought the suit on the theory that a nonconforming use did not exist and that the permits issued to appellant were unauthorized and void ab initio. This contention was concurred in by the interveners and sustained by the trial court in special findings to that effect.
The majority opinion (page 284 of S.W.2d) states: "It is our opinion as a matter of law that there was no abandonment of the prior nonconforming use until effectuated by defendant's own change of operation." This statement is followed by an array of pertinent facts, stating in conclusion that "Under well settled principles, applicable to zoning laws, it follows conclusively, we think, that the court's issue on `abandonment' was not raised in the testimony of Mr. Kennemer" (the prior owner), citing several pertinent authorities.
I am in perfect accord with the majority in the conclusion that the nonconforming use had not been abandoned by the prior owner and was in existence at the time of appellant's purchase; and I am also of opinion that the nonconforming use extended to and included the lots upon which appellant was building a garage when the stop-work order was served upon him.
Bearing upon the latter question, Mr. Kennemer's testimony is undisputed. He said it was his intention to use those lots in connection with the others as an entirety "and that is why we acquired it." He said further: "We removed the old machinery which was, in our opinion, — and we know — obsolete, and we intended and had made our arrangements to rebuild a modern electric plant such as we own three or four of in the City, and a number of them elsewhere, and about that time it became impossible to get ice machines of any consequent size or capacity. We couldn't get them delivered at all, and you can't get them until now. You can't get them now. And we kept holding onto that property with the full intention-there never had anything been issued, any restrictions by the City of Dallas, or anybody else, to prohibit us, as far as we knew, —" (p. 54, printed brief).
In a similar situation, the Supreme Court of Oklahoma, in Royal Baking Co. v. Oklahoma City, 182 Okla. 45, 75 P.2d 1105, held "that where a baking company prior to the enactment of an ordinance which placed the area in which it was situated in a residential zone was well established as a going legitimate concern and had, with the intention of expanding its business, purchased the adjacent lots with the purpose of using them in the conduct of its business, including such things as might be incidental thereto, it was entitled, after the enactment of such ordinance, to use a building originally constructed as a residence upon one of the adjacent lots, as a garage for the purpose of repairing its own trucks, * * *." (p. 56, printed brief.)
However, after correctly holding that the nonconforming use had not been abandoned at the time of appellant's purchase, I think *Page 289 the majority erred in holding that the appellant abandoned such use, saying in this connection: "But defendant is not engaged primarily in the cold storage of meats (citing some authorities); the refrigeration of meats being merely an incident to his dominant enterprise of meat processing or packing; becoming a new and substantially different use * * *." (See p. 285 of S.W.2d, opinion.) The latter holding, in my opinion, is erroneous for two reasons: First, no such issue was presented in the pleadings nor was it relied upon as a ground of recovery by appellees; the only issue presented by the pleadings on the question of abandonment and submitted to the jury, was whether Mr. Kennemer, the prior owner, had abandoned the nonconforming use before appellant's purchase. Seemingly, this highly material and pivotal issue was raised by, and appears for the first time in the majority opinion (pp. 284-285 of S.W.2d, opinion).
I think an issue so material that, if sustained, would deny to appellant the right to use the property for any purpose other than as permitted in an apartment or residence district, hence utterly destructive of his right to use the property under the nonconforming use as a cold storage and its accessory purposes, should have been plead and appellant given an opportunity to answer and try out the issue in the customary manner. For this reason I think the majority erred in holding that appellant abandoned the nonconforming use by devoting the property to "a new and substantially different use."
Again, I think the majority erred in such holding, in that I do not believe the evidence warranted the conclusion that the property had been subjected to a new and substantially different use; but rather I think the evidence shows that the property was used for cold storage and accessory purposes, as that term was construed and administered by the officials of the City of Dallas. The testimony bearing upon this question is that of Mr. Hansen, assistant building inspector in charge of the subject, and Mr. Dillard, Assistant City Attorney. Mr. Hansen testified that his first interview with appellant was on August 7, 1944, shortly before the issuance of the permit. He said: "Mr. Rosenthal told me that he was interested in the purchase of this property for installing freezing, a cold storage plant. He would handle meat." At another place the witness said "He would handle meats, sausage, general run of things that are handled in these cold storage plants. I questioned him fairly closely on just what his processes were, what he did, whether there was any slaughtering or not, and he assured me that he had no intention of — He assured me that he had no intention of slaughtering of any kind, cattle, fowl, or anything else. That it was strictly a cold storage operation with the usual side lines of making sausage and various meat products. Then he wanted to know if we would issue a permit for his necessary remodeling, and I told him when he filed his application we would issue the permit." Mr. Hansen stated further that he discussed the matter with Mr. R. L. Dillard, Jr., Assistant City Attorney, and that he acted on the legal opinion received and issued the permit; the permit being for the use of the property for a cold storage "including meat storage and curing."
Mr. Dillard, Assistant City Attorney, participated in this conference and testified in substance that Mr. Rosenthal, the appellant, was in the meat-packing business of some kind. Mr. Hansen, assistant building inspector, said it was his opinion from an investigation of the facts that Mr. Kennemer, the party from whom appellant purchased the property, had a nonconforming use for the operation of an ice plant, in that he had been there for many years, and asked witness the question: "What is your opinion about the proposition of Mr. Rosenthal to convert that from ice manufacturing to cold storage?" That they then discussed the terms of the ordinance and told Mr. Hansen that he had the right to determine whether or not Mr. Kennemer and his successor in title (Mr. Rosenthal) had a nonconforming use; that Mr. Hansen informed witness that in his opinion it was a nonconforming use; that witness told Hansen he would have a right to change from ice manufacturing to cold storage. Then the question arose as to what cold storage meant or stood for, and *Page 290 witness advised that it included any use that was auxiliary or incident to the main use; and that some question arose as to the making of sausage or preparing of sausage or packing of sausage, and witness advised Mr. Hansen that that was a fact question as to whether or not it was customarily incident to a cold storage to have this type of use and he said he thought it was, based on his experience over town in investigation and knowledge of cold storage plants. Witness said that he outlined the result of his conference to Mr. Thuss, acting City Attorney at the time, and he concurred in the advice given by witness. The witness testified that Mr. Hansen pointed out that the type of operation of a cold storage plant such as they were discussing was the same type carried on by others that were located in a commercial district and that he understood the appellant had in mind the operation of the same type that all the cold storage plants were carrying on, and of course the witness said that was based in part on the language of the ordinance which says: "Accessory uses customary to the main use on the premises." A QA report of the testimony of Mr. Kennemer and Mr. Dillard will be found in the printed brief, pp. 24 to and including p. 30.
The term cold storage is not defined in the ordinance, but is defined in general terms in dictionaries — such "as the storage of provisions, etc., in a place artificially cooled" (New Century Dictionary); and "storage as of provisions in a place kept cold for preservation purposes" (Webster's New International). However, the term as construed and administered by the officials of the City of Dallas, in my opinion permitted the uses as substantially pursued by the appellant.
Executive or Departmental Construction of statutes is discussed in 39 Tex.Jur., sec. 126, pp. 235 to 238: "The courts will ordinarily adopt and uphold a construction placed upon a statute by an executive officer or department charged with its administration, if the statute is ambiguous or uncertain, and the construction so given it is reasonable. In other words, the judiciary will adhere to an executive or departmental construction of an ambiguous statute unless it is clearly erroneous or unsound, or unless it will result in serious hardship or injustice, although it might otherwise have been inclined to place a different construction upon the act. The rule above stated is particularly applicable to an administrative construction of long standing, where valuable interests or rights have been acquired or contracts have been made, or where a law that has been uniformly construed by those charged with its enforcement has been re-enacted without a change of language. * * *."
If, however, it can be said that the appellant, during the operation of his business, departed in some particular from the uses permitted as accessories to a cold storage plant, yet I think that in substance his operations were authorized as accessories to a cold storage as construed and permitted by the administrative and executive officers of the City; and that such misuse could and should have been corrected by injunctive relief and did not authorize the destructive and confiscatory judgment that was rendered.
In course of the majority opinion (at page 286 of S.W.2d), it is also said: "It is our opinion, however, that issuance of the August 1944 permit was unauthorized because violative of a zoning ordinance * * *." This holding, in my opinion, is somewhat in conflict with the prior holding heretofore discussed where the majority said "It is our opinion as a matter of law that there was no abandonment of the prior nonconforming use until effectuated by defendant's own change of operation." That the nonconforming use for the operation of an ice factory existed at the time appellant purchased the property from Mr. Kennemer, cannot, in my opinion, be successfully challenged, in view of the undisputed testimony of Mr. Kennemer as heretofore shown; also that such nonconforming use permitted the use of the property as a cold storage and its accessories such as the storage and curing of meats, as shown by the testimony of Mr. Hansen, assistant building inspector, who acted for the City in the premises. *Page 291 f All this being true, as shown by the record, I think the permit of August 1944 "for the erection, remodeling, repairing and demolition of buildings, or parts thereof, as provided in the Dallas Building Ordinance" for the operation at the same place of a cold storage plant, including meat storage and curing, was authorized and valid; and not having been appealed from by the City authorities or interested citizens, cannot now be collaterally attacked.
The building inspector was the only City official who could lawfully determine the existence of facts supporting the nonconforming use and the classification of the operations proposed by the appellant; and the determination of these questions being placed upon the inspector by the legislature and the City Council, his rulings when supported by evidence as in the instant case, cannot be attacked except by appeal as provided in Art. 1011g. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441, where established rules of administrative law are set forth to the effect that the determination of facts by a designated Board or official cannot be overturned and the court's judgment substituted, where such determination is supported by substantial evidence; and the Supreme Court has stated the rule in the case cited above as follows: "The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court."
In the majority opinion mention is also made of the failure of appellant to obtain an additional permit for the extra expenditures on erections and alterations of buildings; also his failure to obtain a certificate of occupancy (in my opinion a mere ministerial act) after completion of the new, and alteration of old buildings, which, in my opinion, were waived by the City authorities who from time to time inspected the buildings as the work progressed; and I think they should now be held estopped to complain of appellant's failure to obtain the additional permit or the certificate of occupancy.
Mr. Hansen, assistant building inspector at the time, testified in regard to his inspection of the premises during progress of the work; said he went out on two occasions in September 1944 in regard to several matters which were adjusted; and Pat Parkinson, also assistant building inspector, testified in regard to inspection of the property during progress of the work, stating that he first visited the property in December 1945, and off and on during all of 1946; that he saw the garage building after it was started and was going up; that the size of the building and the material used in construction were substantially the same as provided in the purported permit; that he knew of nothing that was wrong in regard to the building; and as far as he knew, the building was all right and in accordance with the building permit. Mr. R. H. Cummings, the present building inspector, testified that it was common practice that plans and specifications are not literally complied with in repairing and remodeling jobs under permits (S.F. 368); and Pat Parkinson, assistant inspector, testified that "ninety percent of the permits are underestimated, and that the permits are not canceled for exceeding in value the amount provided in the permit." (S.F. 168).
The defenses of estoppel, acquiescence and laches were properly raised in appellant's pleadings (Tr. 65-66). The record discloses that the expenditures for erection, repairs, remodeling of buildings, and the installation of machinery cost about $60,000 and that these expenses plus the amount expended for the lots brought the total expenditures up to about $100,000; and the record further discloses that from August 1944, date of the original permit, until March 21, 1946, some eighteen months thereafter, no official action was taken by the City to stop the work for any failure, for any departure from the purposes permitted, for the excessive expenditures, or failure to obtain certificate of occupancy. I think it is obvious that not only the City of Dallas, through its various officers and agents, knew that the work was progressing; that funds in excess of the original permit were being *Page 292 expended; that no additional permit had been issued; and that no certificate of occupancy had been issued; for none knew better in regard to these matters than the City officials; and, notwithstanding this knowledge, they knew the property was being operated for the uses complained of and were fully cognizant of all the facts which are now asserted as ground for injunctive relief. In view of these undisputed facts, I think that appellant acquired a vested property right in the permit; that the attempted revocation was arbitrary and unreasonable and that the appellees are estopped; and furthermore in this connection that the court erred in refusing appellant's requested issues, Nos. 35, 36 and 40; also that the majority erred in affirming this action of the trial court (p. 285 of the S.W.2d of the opinion). The requested issues were as follows: No. 35: "Do you find and believe from a preponderance of the evidence that defendant Rosenthal made substantial improvements and expended substantial sums of money at his place of business in question, with the knowledge of plaintiff and interveners for the period beginning in August, 1944, and prior to the time of the attempted cancellation of the permit in March, 1946?" No. 36: "Do you find and believe from a preponderance of the evidence that the changes, additions, and alterations made by the defendant at his main plant, 3307 Lemmon Avenue, were made with the knowledge or acquiescence of the agents of plaintiffs and interveners?" No. 40: "Do you find and believe from a preponderance of the evidence that defendant substantially complied with the plans, specifications and method of construction as described in his purported permit for the garage in question?"
I know of no reason why the conduct of a city, acting as it must act through its authorized agents in the enforcement and administration of the zoning law, should be considered so sacrosanct as to be immune from the application of the doctrine of estoppel as the same is applied to individuals and corporations in the varied relations of life. I do not think such is the law. On the contrary, I think the law is as held in Bassett on Zoning, p. 106, that "Where a building department through mistake has issued a permit for a nonconforming building, and construction has proceeded and no appeal to the Board of Appeals has been taken by neighbors the permit will not be revoked. Call Bond Mortgage Co. v. Sioux City, 219 Iowa 572, 259 N.W. 33; Freeman v. Hague,106 N.J.L. 137, 147 A. 553; Wikstrom v. City of Laramie, 37 Wyo. 389,262 P. 22." In the case of Freeman v. Hague, 106 N.J.L. 137,147 A. 553, it was held that the superintendent of building having issued a building permit on January 17, 1928, for the construction of a five-car garage, the Board of Commissioners' action on April 10, 1928, in passing a resolution revoking the permit, was invalid, without lawful authority, where the permittee had expended moneys in prosecution of the work and entered upon contractual relations with builders, unless it appears that such permit was obtained by fraud or deceit. In the instant case the record is bare of any evidence of fraud or deception practiced by the appellant. On the contrary he met with the building inspector and the City Attorney before he purchased the property and explicitly stated the character of business he intended to pursue; in fact laid all the cards on the table, so to speak. The rule was also stated in Wikstrom v. City of Laramie, 37 Wyo. 389, 262 P. 22, that where the City Council or the proper City officials, in absence of fraud, grants a permit for construction of a building and the party, acting in good faith, begins erection of the building, the permittee acquired something in the nature of a vested right, more than a mere license, and the permit could not then be revoked by the City; and in City of Evansville v. Gaseteria Inc., 7 Cir., 51 F.2d 232, 237, it is stated: "Expenditure by appellee of this large amount on installation and equipment of this plant, under the facts and circumstances here appearing, in our judgment presents a case where the revocation of the permit, and stoppage of the work, would deprive appellee of its property without due process of law. Dobbins v. City of Los Angeles,195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169." *Page 293
In the instant case the permit issued to appellant for operation of a cold storage plant including meat curing was based on specific finding of the existence of a nonconforming use by the building inspector who is charged with the duty of enforcing this ordinance, from which no appeal was prosecuted by either City officials or interested individuals. In my opinion the action of the building inspector became, in a sense, res judicata. See article in Texas Law Review, Vol. 25, No. 3, pp. 199-246, by Professor Kenneth Culp Davis, which states (at p. 240) that: "To some extent this theory of direct and collateral attack has been carried over into administrative law. The theory is that a party who fails to make a direct attack on an administrative order is barred by res judicata from making a collateral attack except when the order is void on account of such a reason as fraud or lack of jurisdiction denial of fair hearing. * * * If a statutory method of review is prescribed any other method of attack if permitted is likely to be deemed collateral. Washington v. Dallas, Tex. Civ. App. 159 S.W.2d 579."
I think it is now so well settled in this State as not to require the citation of authorities that a defendant is entitled to an affirmative submission of all defensive issues raised by pleadings and evidence and that a finding on plaintiff's issues is not sufficient to deprive a defendant of an unconditional submission of his defensive issues.
The trial court in my opinion erred in refusing to submit appellant's issue No. 37, and I think the majority erred in affirming this action of the trial court. This issue reads: "Do you find and believe from a preponderance of the evidence, under all the facts and circumstances of this case, that the property in question is not suitable for apartment usage ?"
The property in question is located on Lemmon Avenue in the City; its immediate southwest boundary is the right-of-way of the MKT Railway; the embankment for its tracks is higher than appellant's adjacent buildings; at this point on the street there is an underpass; the property in question had been used for commercial and light manufacturing purposes for more than forty years. There are no new residences in the immediate area which, it seems, is suffering from the encroachment of businesses. Lemmon Avenue has been designated as a crosstown thoroughfare and appellant's buildings on the lots, erected and used for business purposes, could not well be utilized or converted into residences or apartments, but under the judgment of the court would have to be torn down. In view of the situation thus briefly stated, I think the requested issue should have been given and if the jury had answered that the property in question was not suited for apartment purposes, to prohibit appellant from using the property for purposes authorized under his permit would, in the last analysis, amount to confiscation.
Many cases more or less in point could be cited, such as Stone v. Kendall, Tex. Civ. App. 268 S.W. 759; Spahn v. City of Dallas, 111 Tex. 350,235 S.W. 513, 19 A.L.R. 1387; Houston T. C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850; City of Amarillo v. Stapf, Tex. Civ. App. 109 S.W.2d 258 (app. for writ dismissed); and Tews v. Woolhiser, 352 Ill. 212, 185 N.E. 827, 831, where among other things the court said: "It lies not within the power of a municipality to so zone property as to render it worthless. Such is not zoning — it is confiscation." However, the case that I think is more nearly in point is that of City of West University Place v. Ellis, 134 Tex. 222,134 S.W.2d 1038, 1041 (by the Commission, opinion adopted by Sup. Ct.), where among other things the court said: "There is ample evidence to sustain a finding that defendant's lot is practically worthless as residential property. In the first place, a residence thereon would have to be located within a few feet of a drug-store and liquor store. In the next place, it would have to be located practically upon the brink of a deep drainage ditch, which the photographs showed carried a considerable flow of water. Besides, the lot faces upon the principal thoroughfare of the city, and immediately across the street from same another street opens into *Page 294 University Boulevard. It is thus seen that a residence on this lot would be subjected to all of the discomforts and inconveniences of a constant stream of traffic. In addition, there is already a business being conducted immediately east of the lot. While mere inconvenience and depreciation in value are not sufficient within themselves to constitute unreasonableness, yet it is settled that when depreciation in value is such as to make the property practically worthless for the designated use, this constitutes confiscation."
I also think that the trial court erred in refusing appellant's requested issue No. 43; also that the majority erred in affirming this action of the trial court. The requested issue reads: "Do you find and believe from a preponderance of the evidence that offensive and obnoxious odors could be detected by a person of ordinary prudence on the outside of defendant's plant, and beyond the boundaries of his property?" Bearing upon this issue, the record discloses the following: Major E. A. Wood, City Planning Engineer, witness for the City, testified among other things that he was familiar with the property in question; that he had passed there quite often and had never smelled any offensive odors (S.F. 48); that he had not observed any odors or noises which would interfere with the operation of Lee Park (S.F. 49); and that he had not observed any offensive smoke from appellant's plant since it had been in operation (S.F. 50). Mr. Parkinson, one of the inspectors for the City, testified that on one occasion he investigated a complaint of alleged noises which had been corrected; that he had never observed any smoke from the plant; was certain that there had never been any slaughtering of any kind in connection with the operation of appellant's plant, etc. Monroe Metcalf, another of the City inspectors, testified that he had inspected the United States Cold Storage plant, the Dickey Sausage plant, and others in the City of Dallas and that their operations were similar to those being conducted by the appellant (S.F. 493); and C. A. Bruning, one of the inspectors, testified that he had made official inspections of appellant's plant twice daily for the preceding six months under the direction of Mr. Metcalf, and that he had not observed any offensive odor or smoke during such inspections (S.F. 496, 497).
In view of the testimony of these witnesses, I think it became obligatory on the trial court to submit to the jury the requested issue just set out and that the court committed reversible error in refusing same.
In conclusion, beg to say that in view of the reasons heretofore set out, I think appellant's motion for rehearing should be sustained and that the case should be reversed and remanded to the trial court for further proceedings.