This action, although in character bilateral, tripartite, and alternatively directed — that is, brought by appellant, a directly abutting owner in each of his dual capacities as such, the one as a private person, the other as a representative of and for the benefit of the public, both against the city of Galveston and the Buccaneer Hotel Company, a private corporation, primarily for the removal of the street obstruction by way of injunction, and alternatively for consequential damages to his own property — has resulted in no recovery on either count for himself individually, or for the other members of the public he thus essayed to serve; this despite the uncontroverted fact that so large a portion as 11.85 by 125.8 feet of an irrevocably dedicated 70 foot wide public street had already been, with the express approval of the city of Galveston through a purported ordinance, physically appropriated in the erection thereon of a permanent building as for exclusive and perpetual use by the hotel company for its private business.
This adverse result, proceeding in the first instance from a refusal to admit the proof appellant proffered of damage in his private right, in the second from a finding that he had estopped himself in both capacities from a recovery on either declared upon cause of action by having in advance orally consented to the erection of the encroachment, seems to me, under the facts, to run askew to the now well-defined law of Texas against such a diversion of the public thoroughfares to purely private use.
The able trial court did not then have the benefit of the opinion of the Commission of Appeals on rehearing in Bowers v. City of Taylor, 24 S.W.2d 816, nor of this court's more recent holding in Mrs. Julia A. Coombs v. City of Houston, 35 S.W.2d 1066, opinion filed November 20, 1930.
While both corporate defendants declared upon the ordinance as such a valid exercise of the city's charter powers granted by chapter 37, Special Acts of the 28th Legislature of Texas, as authorized it to close and vacate for that express purpose the portion of the street so actually appropriated, only the hotel company added the plea of estoppel from a claimed consent; the city contenting itself, after denying, first, that W. L. Moody, Jr., had ever complied with section 5 of the ordinance requiring him to file a written acceptance thereof within ten days from its passage, second, that any of its officers or agents had participated in the physical closing thereof, and pleading two years' limitation, with pleading over against its individual codefendant, W. L. Moody, Jr., on an alleged agreement between the two whereby he, in consideration of the city's passing the ordinance and permitting him to accordingly appropriate that much of the street, undertook "to hold the City of Galveston harmless and indemnify it against all suits, costs, expenses, and damages that may arise, or grow out of the closing of the aforesaid part of said Avenue Q, or by reason of his said occupation thereof."
So that, the trial court having found that Mr. Moody did file the acceptance called for under section 5 thereof, the fact remains that the city on its part neither set up nor claimed any such consent, and alleged no defense unless this ordinance constituted one.
It is respectfully here submitted that both litigants acted upon a misconstruction of the charter powers of the city of Galveston, and that the ordinance of September 15, 1927, enacted in furtherance of such understanding between them, which plainly on its face amounted to no more than a contract whereby the entire 16 feet of Avenue Q along the south side thereof, all the way from Tremont to Twenty-Second street, was to be perpetually closed to all others and turned over to Mr. Moody for his exclusively private use, in consideration of his building and forever maintaining a $300,000 hotel on his own property and this strip of Avenue Q in connection therewith, was not only null and void, but the portion of the building so erected on the street, being in consequence a purpresture and a nuisance per se, left the city as well as the hotel company in the attitude of wrongfully maintaining it as such. Bowers v. City of Taylor (Tex.Com.App.) 16 S.W.2d 520; Id. (Tex.Com.App.) 24 S.W.2d 816; Radford Grocery Co. v. City of Abilene (Tex.Com.App.) 34 S.W.2d 830; Coombs v. City of Houston, supra; American, etc., Co. v. Seelig, 104 Tex. 16,133 S.W. 429; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S.W. 288; Southwestern Telegraph Tel. Co. v. Smithdeal, 104 Tex. 258,136 S.W. 1049, 1052; Ort v. Bowden (Tex.Civ.App.) 148 S.W. 1145; Galveston, etc., Ass'n v. Ort (Tex.Civ.App.) 165 S.W. 907; Boone v. Clark (Tex.Civ.App.) 214 S.W. 607; Quanah, etc., Ry. Co. v. Swearingen (Tex.Civ.App.) 4 S.W.2d 136; Blair v. Astin (Tex.Civ.App.) 10 S.W.2d 1054; City of Corsicana v. Zorn, 97 Tex. 323, 78 S.W. 924.
As these cited holdings disclose, no courts perhaps have gone further than those of Texas in protecting the use of public streets to the people generally and to abutting owners thereon particularly; it therefore becomes *Page 176 unnecessary to go afield for authority. On a state of fact on this feature not in legal import different from that here obtaining, the Commission of Appeals, with the express approval of the Supreme Court, in Bowers v. City of Taylor, supra, not only held an ordinance less objectionable in terms than the one here involved violative of the State Constitution as undertaking both to barter away the city's legislative powers and to make an irrevocable or uncontrollable grant of special privileges, but also that an abutting owner against whom it was sought to be applied was not restricted to a suit at law for damages, but had a cause of action for injunctive relief as well. The two rights were therefore not interdependent, as the appellee hotel company earnestly contends on the appeal.
In the oral argument before this court, the able and high-class counsel for appellee hotel company admitted the invalidity of this ordinance and that the city, if it was so disposed, could require the company to remove so much of the building as was in the street, but insisted notwithstanding that the court could not in this proceeding order that done at the instance of this appellant.
The further suggestion is now ventured that that position, too, is unsound.
Appellant had purchased his property with especial reference to its being located at this corner on this dedicated, open, and existing public street of 70 feet in width, as then shown on the ground and on the accepted plan of the city, on the faith of which he bought; it was situated in the same block with and directly across Avenue Q from that part of it the complained of building intruded upon, the locality being among the most frequented ones on the city's water front; in other words, he possessed all the rights and capacities of an immediately abutting owner. The city itself, as in Ort v. Bowden, supra, had not only abdicated its obligation as a trustee for him along with the rest of the public to keep that portion of the street unobstructed, but had even joined with the hotel company in the attempt to perpetually close it, which attitude it still maintains by making common cause here with its coappellee, the hotel company, in insisting that its action then was not an invalid exercise of its charter powers, and that it is in no way liable.
Such an abutting owner, by the rule of law rather generally recognized, especially in Texas, has two separate and distinct interests in the street — the public one that he enjoys in common with all other citizens, and the strictly private one that arises from his ownership of the property located thereon — the public right to use it for purposes of travel and transportation, which is enforceable through him as a member of it, being paramount, his own individual one subordinate, 28 Cyc. page 856; City of Corsicana v. Zorn, 97 Tex. 317,78 S.W. 924, 925; not only so, but the city here, as the embodiment of the public authority, with all the consequent power over and responsibility for the dedicated streets within its limits, not only had the right, but the nondelegable and inescapable duty to the public as well, to at all times open, protect against purprestures, and maintain them in usable condition as such ways. Furthermore, to quote the text in 44 Corpus Juris, at page 1011:
"The general rule that a city cannot relinquish its power to control and regulate its streets applies to relinquishment of the power to remove obstructions and encroachments.
"A private person may have the power to remove street obstructions, and the fact that one has a private interest in securing the removal of an encroachment upon a street does not deprive him of the right as one of the public to demand enforcement of the public right, nor does the fact that he has no private interest interfere with his assertion of the public right." People v. Gross, 137 A.D. 77, 122 N.Y.S. 135; People v. Keating, 168 N.Y. 390, 61 N.E. 637; People v. Halsey, 37 N.Y. 344,348.
Our own Supreme Court, in the Zorn Case, supra, expressed the same principle for a somewhat different application in this declaration: "The effect of the deed, then, from Mrs. Zorn and her husband to the different purchasers of lots in Zorn's Addition, was to convey to such purchasers the right that they and all persons should be permitted to use the streets and alleys for the purposes designated upon the said plat for all time, and this conveyance vested in the public and in the city of Corsicana, as the organized representative of the public, the right to take possession of and use said streets and alleys whenever the progress and development of the town should make it necessary so to do."
Likewise, in Coombs v. City of Houston, supra, this court held the interveners, as mere purchasers of abuting property on Yale street subsequent to its dedication as such, entitled to require the removal of obstructions therefrom as representatives of the public.
So that both the public and the private rights in this street were here involved, and appellant, alleging and proving himself to be a member of the public as the sort of abutting purchaser referred to along with his distinctly individual cause of action of the same purport, also sued as such for the benefit of all the public, making the city a party defendant because of its claimed repudiation of all its governmental duties, specifically in practically every count of his rather ineptly drawn petition, fifteen in all, charging the violation by both the hotel company and the city of the dominating public right to have the thoroughfare kept open for its full width, and finally expressly asking, in behalf of the public for its restoration in this prayer: *Page 177
"Wherefore, this plaintiff prays that this Honorable Court issue its most gracious writ of injunction against the defendants and each of them from in any manner acting under said illegal contract and ordinance, and restraining and enjoining them and each of them from obstructing or closing any portion of said Avenue Q, and commanding them and each of them to re-open the said Avenue Q, and removing all obstructions therefrom, and compelling and commanding them and each to reinstate said Avenue Q to its original condition with hard surface paved-sidewalks along the south side thereof, and 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; and that the entire sidewalks along the south side of said Avenue Q be maintained as a public sidewalk on said street, and that said closing of said street be declared to be a nuisance, and that the same be in all things abated; that said injunctive relief and the abatement of said nuisance, be granted to plaintiff upon the final hearing of this cause, and plaintiff prays for such other and further relief, special and general, in law and in equity, to which he may show himself entitled."
That he so sued is accordingly not to me debatable. The trial court overruled general and special demurrers to this petition, none of which were leveled at this declared upon dual capacity of the plaintiff, and no complaint of that action is made.
These being the reaches of the action, and the undisputed evidence having established all the essentials thereof substantially as averred, among them the original platting, dedication, and long user as such of the 70-foot public thoroughfare, the urgent need by all the public for its full width because of the frequent and increasing congestion of travel in that particular block, the respective and relative abutting ownerships of appellant and the hotel company, the passage of and the action of both the city and the hotel company under the relied upon ordinance, including the physical closing by erection of the permanent building thereon of 11.85 by 125.8 feet out of the total of 16 by 258.5 feet authorized by the purported grant, and the resulting exclusion as for all time of all others than the hotel company from any use of so much of the street — the conclusion seems inescapable that the remedial writ so sought should have issued.
It is a rule of general application that an act done in an individual capacity will not estop one in his representative capacity, and vice versa. 21 Corpus Juris, paragraph 187, page 1184, footnote 65 and 64, and cited authorities.
Furthermore, a municipal corporation, in respect of acts done in the strict scope of its so-called governmental or public capacity, in which alone the city of Galveston was called upon to act in this instance, cannot be estopped. 21 Corpus Juris, paragraph 190, page 1187, footnote 80, and cited cases. See, also, as hearing on the question, Nueces County v. Gussett (Tex.Civ.App.) 213 S.W. 725.
It follows that the case here made, as seems to me, is neither upon principle nor the weight of authority ruled by the doctrine of equitable estoppel by consent, as concretely interpreted and applied by the learned trial court in this instance; rather has that defense in actions for the removal of obstructions from dedicated streets been quite generally if not exclusively held to control only purely individual rights as between private parties, not to operate either against public rights or governmental authority.
This distinction is clearly pointed out by the Supreme Courts of Wisconsin and of California, in Walterman v. Village of Norwalk,145 Wis. 663, 130 N.W. 479, Ann.Cas. 1912A, 1176, and Amestoy v. Elec. R. Transit Co., 95 Cal. 311, 30 P. 550, respectively, wherein by necessary inference at least it is held that, while a purely private right may be sold, given away, or perhaps lost through estoppel, that doctrine is not applicable to public rights, hence any agreement not to sue to vindicate the public right, or not to object to the creation or maintenance of a public nuisance, is void as being against the public policy of the land.
Hence the fact that appellant personally in advance made oral assurance to the hotel company that he would not object to the construction in the street, which finding below must be accepted because based on sufficient evidence, constituted no valid defense to a suit for its removal in favor of the city. 44 Corpus Juris, page 1019, paragraph 3839, footnote 99, and cited authorities.
That would merely amount to permitting it, through the indirect method of hiding behind the skirts of the hotel company, to deprive itself of the power to perform its public duties, a thing that would be contrary to public policy, as well as against the positive law. Elliott on Roads and Streets (4th Ed.) vol. 2, p. 1093.
If it were conceded that the question of whether appellant suffered special damage from such an encroachment different in kind from that cast upon the general public was one of fact, yet to say that this annihilation of the public right to have the whole of an actually existent, irrevocably dedicated, and momentarily used public thoroughfare kept open for its use does not inflict damage as a matter of law is to negative the generally if not universally accepted rule. Opinion on rehearing in Coombs v. City of Houston, supra, and authorities therein cited; Shelton v. Phillips (Tex.Civ.App.) 229 S.W. 967, and quoted holdings. *Page 178
Consequently, in cases like the one at bar, where not only the public right in, but also its authority and responsibility over, the streets is directly in issue with its organized representative before the court as a party, the only matter to be alleged and proved is the invasion of the public right; that having been conclusively if not admittedly shown here, the cost of removing the obstruction became an immaterial consideration, and, the city of Galveston having declined to do so, the court should have ordered the removal, agreeably to the law of Texas as thus declared by the San Antonio Court of Civil Appeals in Dozier v. City of Austin,253 S.W. 554, 555: "A city cannot recover damages arising from the obstruction of streets. It has the right to have them removed. Appellee is a corporation organized by its citizens to administer their affairs, have their laws executed, protect their streets, alleys, and public grounds from trespassers and invaders of their rights, and, in seeking the aid of the courts of Texas to remove obstructions from streets and alleys placed there by trespassers and those acting in defiance of law, it does not devolve upon such corporation to allege or prove damages or that it has an adequate remedy at law for such relief. It has no such remedy at law. The only matter to be alleged or proven was the invasion of a public right. Dillon, Mun. Corp. § 1130; State v. Goodnight,70 Tex. 682, 11 S.W. 119; Oxford v. Willoughby, 181 N.Y. 155, 73 N.E. 677; Woodbridge v. Middlesex Water Co. (N.J. Ch.) 68 A. 464. This action was brought by the guardian of the public to conserve the rights which the public have in the alley as a highway. The duty rested on the city to have the obstruction removed. Joyce on Injunctions, § 1285, and authorities cited in footnote."
The leading authorities relied upon by appellees, such as Shelton v. Phillips, supra, Bailey v. Culver, 84 Mo. 531, and Lewis v. Pingree National Bank, 47 Utah, 35, 151 P. 558, L.R.A. 1916C, 1260, do not upon the legal equivalent of the same state of facts hold differently. To say nothing of other distinguishing features, they were all between private parties only, involved purely private rights exclusively, and neither the public right nor the exercise of its authority over the streets either directly or through control thereof by the Court, was in any way involved. Accordingly, they each and all appear to have been ultimately determined upon what Mr. Pomeroy has been pleased to term "the balance of injury or convenience rule," which, as before shown, has no application to the preservation of public right by or through the public authority.
While there also appears to have been reversible error in relation to the appellant's claim for damages, that becomes immaterial under the view that injunctive relief in behalf of all the public including himself should have been awarded, since he sought individual damages only in event the latter were denied.
Under these conclusions a reversal should have been ordered, and judgment here entered granting the writ of injunction substantially as prayed for. This dissent from the refusal of this court to so act is respectfully entered.