This brief concurring opinion on rehearing. Simply stated, the dissent agrees that the City could not close Breneman Street in the sense of preventing ingress and egress by obstructions but says the City did no more than relinquish the public easement in this case. I cannot subscribe to this construction of what transpired.
In my opinion, Breneman Street was closed by the joint action of the Bank and the City and both are equally legally responsible. There can be no doubt that the closing of this street in both senses, abandonment and obstruction, was accomplished by carefully planned action on the part of both. Actually, this is not denied by the City in its brief. At one sitting, the City Council closed the street, authorized the execution of the deed to the Bank, and replatted the property so as to remove Breneman Street. Two weeks before these actions were taken, the minutes of the City Council show that this matter was discussed at length and a representative of the Bank was present with its plans to build the garage which would obstruct the street. It is stated in the dissent that the acceptance of money from the Bank by the City is immaterial. I disagree. In my opinion it is further evidence of the concerted effort on the part of both to accomplish the "obstruction' of the street. Even though the general rule may be that the "motive' of the municipal authorities may not be questioned, their purpose is a legitimate matter for inquiry. See 11 McQuillin, Municipal Corporations, § 30.186 (1964 Rev.Vol.) as follows:
"But while the courts cannot inquire into the motives of municipal authorities in vacating a street, they may consider the purpose intended or accomplished thereby, which, if ultra vires or otherwise illegal, may be ground for judicial interference. For example, if the primary or sole purpose of a vacation is benefit to the abutter or some of them the public interest ordinarily is not served and the vacation is unwarranted."
Also, § 30.186a as follows:
"A street or alley cannot be vacated for a private use, i.e., for the purpose of devoting it to the exclusive use and benefit of a private person or corporation; but it may only be vacated to promote the public welfare."
The dissent appears to rely primarily upon two cases, which reliance, in my opinion, is misplaced. Blair v. Astin, 10 S.W.2d 1054 (Tex.Civ.App., Galveston, 1928, error ref.), makes it clear that it is answering only two questions. First, that the appellant did not have the right to close the street and, secondly, that the City of Houston had the right, through its deed, to merely relinquish its public easement for street purposes in the street in question. *Page 926 This statement appears in that opinion at page 1056:
"Having passed no ordinance or resolution nor done any other overt act looking toward physical closing of the street at that point . . . except . . . to release any interest it might have therein."
The question as to whether a city must respond in damages was not in issue in that case.
Bowers v. Machir, 191 S.W. 758 (Tex.Civ.App., Fort Worth, 1916, no writ), is also cited in the dissent. This is a case in which an injunction was sought to require the defendants to remove a fence built across an alley and the city was not a party to the suit. The trial court denied the injunction and found that the city was a necessary party. The court of civil appeals reversed and remanded the case, holding that the city was not a necessary party, although it was a proper party. These statements of law are also made therein:
"There is no doubt that the city had the right to vacate the alley as a public alley, but that if it did so, it had no power to prevent the use of the way as a street by those who had a legal right to have it left open for such use. Gilder v. City of Brenham, 67 Tex. 345, 351, 3 S.W. 309. And if the plaintiffs had a special property right in having the alley left open, the city could not, in any event, destroy the same without making itself liable for compensation therefor. (M. L.) Lumber Co. v. T. B. Railway, 104 Tex. (8) 15, 133 S.W. 247, 36 L.R.A. (N.S.) 662, Ann.Cas.1913E, 870. * * * * * * "The constitutional denial of any power in the Legislature to authorize the taking of one's property, even for a public benefit, without compensating him therefor applies with special force when the taking is for the sole purpose of donating it to a few individuals. In no event could the city deprive the owner of such a special interest of the value thereof without rendering itself liable in damages therefor, for so to do would be to deprive such owner of his property without due process of law, and, as stated above, in the absence of some special necessity, such as for the preservation of life or health of citizens, such owner would not be limited to a suit for damages sustained by such closing, but would be entitled to equitable relief by injunction to restrain such acts on the part of the city. Vernon's Sayles' Texas Civil Statutes, art. 4643; Kalteyer v. Sullivan, (18 Tex. Civ. App. 488 [18 Tex. Civ. App. 488], 46 S.W. 288 (San Antonio, 1898, refused)); Stevens v. City of Dublin, (169 S.W. 188 (Tex.Civ.App., Fort Worth, 1914, no writ))." (191 S.W. at 761, 763)
Article 4646a, V.A.C.S., is discussed in the dissent and the conclusion is reached that plaintiffs were not abutting landowners. I agree with the statement made in 11 McQuillin, Municipal Corporations, § 30.194, supra, to the effect that where a portion of a street is vacated in another block, even though the landowner's access is not as short or convenient, he does not suffer special injury as would entitle him to damages. However, if the means of ingress or egress is cut off or lessened in the same block with the abutting landowner, he may recover his damages. The plaintiffs in the case before us had property abutting on Breneman Street in the same block in which a portion of Breneman Street was obstructed and, therefore, in a legal sense were abutting landowners.
The dissent suggests the majority opinion may be contrary to a series of Supreme Court cases in dealing with circuity of travel as evidence of denial of access. The cases referred to are City of Beaumont v. Marks, 443 S.W.2d 253 (Tex. 1969); DuPuy v. City of Waco, 396 S.W.2d 103 (Tex. 1965); Archenhold Automobile Supply Co. v. City of Waco, 396 S.W.2d 111 (Tex. 1965), and City of Houston v. Fox, 444 S.W.2d 591 (Tex. 1969). A later case, also cited in the dissent as to another *Page 927 matter, City of Waco v. Texland Corporation, 446 S.W.2d 1, 2 (Tex. 1969), contains this statement:
"Our continuing study of this admittedly difficult problem has led to the conclusion that the first of the corollary rules just stated should be modified 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."
My conclusion is that the City cannot, through its joint action with the Bank, accomplish the closing and obstructing of Breneman Street through indirection which, admittedly, it could not do directly and must respond in damages.