ON MOTION FOR REHEARING
DEVANY, Justice,dissenting.
This appeal was originally assigned to Justice Devany by the panel before which this case was submitted. At the request of a majority of the justices, Chief Justice Guittard called an en banc conference. After considerable deliberations, the court sitting en banc concluded that the Board of Adjustment of the City of Dallas improperly terminated the nonconforming use of the lead smelter without establishing Murmur’s investment in the improvements. I am convinced that my colleagues are incorrect in the conclusion they have reached and I now write to state my reason. I would grant the motion for rehearing and affirm the judgment of the court below. Because the majority opinion has recited the facts sufficiently, I shall merely point to the precise reason I dissent.
Murmur is a late-comer to the facts of this case. The former owners liquidated their investments in prior years, realizing a gain or loss in both their operations and their sales of the property. Murmur paid $25,000 for the entire property, including land and improvements thereon. While it may be true that Murmur incurred acquisition costs to legally acquire the property, it incurred no costs in erecting improvements before it was informed that the City would terminate the nonconforming use. Its exposure of responsibility for clean-up costs of the land would be what any land purchaser would be exposed to, and such costs would be part of acquiring the land, not the improvements.
To satisfy itself that Murmur had no investment in the improvements, the Board of Adjustment established that the underlying land was worth many times the purchase price of $25,000, the value being in the millions of dollars. Indeed, the majority is correct when it holds that the Board may not offset any investment that Murmur has in the improvements against the value of the land. The majority errs, however, in assuming there is a cost in the investment in any improvements on the land.
To illustrate the point, assume that the owner of certain land and building finds that his use of the premises is no longer feasible because the building is no longer useful resulting from a dangerous condition existing. He then sells the whole property with the understanding that he is selling the land and giving the building to the new owner rather than be responsible for its dangerous condition. I believe that generally accepted principles of accounting would require that no part of the purchase price be assigned to the structure. Indeed, I do not believe that any portion of the purchase price would be depreciable for tax purposes. This principle is further emphasized when the purchase price is $25,000 and the value of the land alone is worth millions of dollars. In other words, the purchaser would have no investment in the building under this assumed set of facts.
In the instant case, there was more than sufficient evidence before the Board of Adjustment to reach the conclusion that Murmur had no investment in the improvements on the land it purchased. Additionally, the evidence was overwhelming that the operation of the lead smelter by the new owner was an impracticality and that no profit could be realized out of which it could recover anything. It is well understood that any business investment has as *813its primary purpose the making of a profit. There was absolutely no evidence that Murmur could operate the smelter in that neighborhood profitably. It would have been an exercise in futility for the Board of Adjustment to conjure up a part of the $25,000 as attributable to the structure, and it would have been a further exercise in futility to have assigned a period of time in which to recover such an imaginary cost out of no profits.
Board decisions should be affirmed if they may be upheld under any legal theory, regardless of the reason assigned by the Board. City of Dallas v. Fifley, 359 S.W.2d 177, 182 (Tex.Civ.App.—Dallas 1962, writ ref’d n.r.e.).
VANCE, HOWELL, SCALES and HOLL-INGSWORTH, JJ., join in this opinion.