A careful consideration of the able motion for rehearing filed by City leads me to believe that we erred in reversing the judgment of the trial court. Since my brethren adhere to our original determination, I must respectfully dissent.
First: I consider immaterial the City's acceptance of money from the Bank for the quitclaim deed to a portion of the alley.1 No one contends that the City had any fee title to the land. Ordinarily, in Texas an abutter on a street owns the fee to the center thereof, subject to the city's easement in behalf of the public. "Upon the discontinuance of the highway (the public use of the street in our case) the soil and freehold revert to the owner of the land." Mitchell v. Bass,26 Tex. 372, 380 (1862). See also, Town of Refugio v. Strauch,29 S.W.2d 1041, 1045 (Comm.App., 1930); 10 E. McQuillin, Municipal Corporations § 30.32 at 687 (1966 Rev. Vol.); 39 Am.Jur.2d, Highways, Streets and Bridges § 184 at 561 (1968); 39 C.J.S. Highways § 137 (1944); 28 Tex.Jur.2d, Highways and Streets § 131 at 158, 160 (1961).
This order of discontinuance of the public use of the street did not, however, affect the Private rights in the continued use of the street. This is clear from the decision in Texas Co. v. Texarkana Mach. Shops, 1 S.W.2d 928, 931 (Tex.Civ.App., Texarkana, 1928, no writ), where the court said: "The rights of abutting owners in an existing and used street may not . . . be taken away by the mere passage of an ordinance declaring it (the street) vacated."
In the case at bar, it is obvious that the City did not bar physical access to the plaintiffs or any abutting owner. Certainly, the ordinance "closing' the street did not bar access thereto. Although in our original opinion we spoke of "closing' of the street, we did not use the word in the sense in which it was used in Elston v. City of Panhandle, 46 S.W.2d 420, 421 (Tex.Civ.App., Amarillo, 1932, error ref., *Page 928 121 Tex. 553, 50 S.W.2d 1090 (1932)), where the court said: "The word "closed' is used in the sense of termination of maintenance and not in the sense of preventing ingress and egress by obstructions."
I agree with counsel for the City as stated in the argument supporting the motion for rehearing:
"Thus, in our case, when the Bank acquired all the land On each side of the subject portion of the alley (as it is undisputed that it did) it became the owner of the fee to that entire portion of the alley, Subject to both the public easement and the private easement in the alley. When the City passed the closing ordinance the public easement was removed and the Bank's alley-ownership was subject only to Appellants' Private easement. This was the only effect of the closing ordinance. The Bank had no right to extinguish this private easement. The closing ordinance could not give it such right and did not purport to do so. We should add that Bank was fully aware of appellants' claim when it physically closed the alley." (emphasis in original)
To this, I would add that the Bank, being aware of plaintiffs' Private rights in the alley, paid plaintiffs, $35,000 for the release of such rights, a fact noted in our original opinion.
I adopt Justice Pope's language, concurring in Dykes v. City of Houston, 406 S.W.2d 176, 184 (Tex. 1966), as applicable to the case at bar: "The majority opinion confuses peculiar rights in private easements with the general public's rights in closing and opening streets." Plaintiffs' peculiar private rights were not destroyed or damaged by the adoption of the ordinance. Indeed, as was said in Bowers v. Machir,191 S.W. 758, 760 (Tex.Civ.App., Fort Worth, 1916, no writ): "The mere passage of the ordinance did not give any cause of action against the city . . . The closing of the alley, if wrongful, and that Alone, gave rise to a cause of action in plaintiffs' favor."
Breneman Street was closed and plaintiffs' damages were caused by the construction of the banking facility in a portion of the abandoned street. For this, plaintiffs accepted $35,000; and, having been paid once for the only cause of action they possessed, they may not now pursue the City on a non-existent cause of action.
Secondly: I recant my reliance upon Art. 4646a, V.A.C.S., now being convinced that it has no application to the case at bar. This statute merely denies the right of injunction against "vacating, abandonment or closing, by the City Council . . . of any street or alley . . . except at the suit of the owner or lessee of real property actually abutting on that part of such street or alley actually vacated, abandoned or closed." The premises which plaintiffs occupied under the lease did not abut the part of the alley which was vacated, abandoned, or closed.
Nor does § 2 of the cited statute have any application to our case. There were no "existing laws' — either statutory or decisional — giving plaintiffs a right to enjoin the closing by ordinance of a street or alley at the time of the passage of the act, nor has any such law come into existence since the adoption thereof.
Thirdly: I am apprehensive that we have inadvertently fallen into error in treating the question of impairment of access (and the damages flowing therefrom) as a fact question for determination by a jury.2 Justice Steakley, in City of Waco v. Texland Corporation, 446 S.W.2d 1, 2 (Tex. 1969), said: "(T)he resolution of the problem of whether access has been so impaired *Page 929 that it can properly be said that the private easement in the street has been damaged is a threshold question of law for determination by the Court." We have held that it is a fact issue for determination by a jury while the Supreme Court says that it is a threshold question of law for determination by the Court. I would feel more comfortable with our opinion if we followed Texland and made the determination here and now, and adversely to plaintiffs.
Fourthly: I am convinced now that we erred in utilizing evidence of monetary damages caused by circuity of travel as evidence of denial of access. Essentially, plaintiffs' claim of damages results from their allegation that potential patrons traveling west on Travis Street cannot reach their property via Breneman. Plaintiff do not contend, as indeed they cannot, that potential patrons cannot reach their property from Travis Street; for, to reach plaintiffs' premises from Travis Street the potential patron would simply have to go around the block. The physical facts establish that there was no denial of access and, at best, only a requirement of circuity of travel.
In so treating the subject, we have run afoul of the rules enunciated in a series of cases by our Supreme Court. In City of Beaumont v. Marks, 443 S.W.2d 253, 257 (Tex. 1969), the Court noted that "(d)iversion of traffic resulting in the necessity of using circuitous routes is not compensable." See also, 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); City of Houston v. Fox, 444 S.W.2d 591 (Tex. 1969).
Lastly: In the reply to City's motion for rehearing, plaintiffs say:
"The way Appellants see this Opinion, it leaves it for the Trial Court on a new trial to decide whether the purpose of the closure was for a private or public purpose.
"If the purpose is public, the Court has already said there has been a deprivation of access, and the question is condemnation damages. If the purpose is private, the question is damages at common law."
It is sufficient, at this point, for me to say that I do not subscribe to plaintiffs' view of the opinion and specifically disavow any intention of so holding in any of the particulars enumerated. If plaintiffs' counsel is correct in his interpretation of the opinion (and he may very well be as the opinion is presently written), I dissociate myself therefrom.
I would affirm the judgment of the trial court.
The acceptance of the money from the Bank by City in consideration of the delivery of the quitclaim deed was authorized under the rule laid down in Blair v. Astin, 10 S.W.2d 1054, 1056 (Tex.Civ.App., Galveston, 1928, error ref.).
Significantly, I note that plaintiffs did not allege that City's act challenged here was ultra vires. Cf. Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104, 1106 (1923).