
    CITY OF TEXARKANA v. REAGAN.
    (No. 3764.)
    (Supreme Court of Texas.
    Jan. 17, 1923.)
    1. Municipal corporations <⅜=>63(1) — Whether building nuisance justiciable question.
    Whether a building is a nuisance is a justi-ciable question, determinable alone by the court or jury trying the case.
    2. Municipal corporations <§=^605 — Ordinance making officials’ determination of nuisance final void.
    An ordinance so far as it makes final the orders of its council declaring a building a nuisance, and ordering its summary abatement, is void.
    3. Municipal corporations <⅞^>742(5) — City sued for demolishing building as nuisance must prove nuisance by competent evidence-.
    Where a city demolishes a building as a nuisance -without judicial sanction, though it may defend action for damages on the ground that the building was a nuisance, it must prove that it was such by competent evidence, and its proceedings leading up to the destruction are inadmissible in its favor where only actual damages are sought.
    4. Municipal c'orporations <3=^739(I) — Damages recoverable of city demolishing building as nuisance without judicial sanction stated.
    If building demolished by city as a nuisance -without judicial sanction is not shown by it to have been a nuisance, the owner can recover its value as it was before destruction; but, if shown to be a nuisance, recovery is limited to reasonable value of the material therefrom after its demolition, less the reasonable cost of abatement.
    ' Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Mrs. Nellie. Reagan against the City of Texarkana. Judgment for defendant was reversed by the Court of Civil Appeals (238 S. W. 717), and defendant brings error.
    Affirmed.
    Wm. V. Brown and Keeney & Dalby, all of Texarkana, for plaintiff in error.
    Chas. S. Todd and Thos. N. Graham, both of Texarkana, and W. T. Williams, of Austin, for defendant in error.
   CURETON, C. J.

Prior to April 20, 1919, defendant in error was the owner of a frame building in the city of Texarkana, Tex., which ^he had owned for more than 10 years. While she was absent, and without her consent, the city, plaintiff in error here, demolished the building and sold the lumber and material therefrom for $100, which it offered to her, but which was refused. She filed suit against the city in February, 1921, for the value of the building. The city defended on the ground that it had condemned and destroyed the building as a nuisance under its charter and ordinances. The trial court awarded defendant in error the amount tendered by the city. Defendant in error appealed the case, and the Court of Civil Appeals reversed and remanded the cause. 238 S. W. 717. A writ of error was granted, and the case is here for review.

The special charter of the city authorized it' “to declare all dilapidated buildings in said city to be nuisances and to direct the same to be repaired, removed, or abated in such manner as shall be prescribed by said council.” Whether or not the-city charter contained any other provision authorizing the city to define and abate nuisances we are unadvised, except by the finding of the trial court that the city was duly authorized by its charter to define and abate nuisances, as well as to declare all dilapidated buildings to be nuisances. This finding of the trial judge obviates the necessity o‘f. passing on the validity of the charter provision quoted, but certainly this provision ought to be reexamined by the city authorities, in view of the holding made by this court in the case of Crossman v. City of Galveston, 247 S. W. 810, this day decided, but not yet reported.

The ordinance relied upon by the city as authority for the destruction of the building reads as follows:

“An ordinance declaring buildings which are in any or all of the conditions defined herein .to be a nuisance, providing for a method of adjudging the same to be nuisances and providing for the abatement of same, and declaring an emergency.
“Be it ordained by the city, council of the city of Texarkana, Texas:
“Section 1. That any building as described and defined herein below shall be, and the same are hereby, declared to be a public nuisance:
“(a) Any'building with roof, ceiling, floors, sills and foundations rotted or decayed and falling apart, windows out, uninhabitable and untenable, neglected and unsightly.
“(b) Any building in danger of falling and injuring the person or property of another.
“(c) Any building which is a fire menace, to wit, by being in a dilapidated condition as fully described in subdivisions (a) and (b) hereof, and which has an accumulation of rubbish and trash which is likely to become a fire or be se^ on fire in and around said building and endanger the property of others.
“(d) Any building which is in the condition or conditions described in subdivisions (a) and (b) and (e) which is damp and in an unsanitary condition, which is likely to create disease and sickness.
“Sec. 2. Upon complaint being made under oath by any reputable citizen, and filed with the city council, through the city secretary, complaining that a certain building is in any of the conditions or all of them defined in paragraph one (1) hereof, the city council will set a day not less than 10 nor more than 20 days distant at which time a hearing will be had to determine the truth or falsity of the allegations of said complaint, and witnesses may be summoned and shall testify as to the condition of the building complained of, and all matters alleged and complained of in the complaint.
“Sec. 3. When the date for hearing provided for in paragraph two (2) hereof is set, the owner of said building complained of shall be notified of the action of the city council at least 10 days before said date set for the hearing herein provided for, and shall be requested to appear and show cause why said building should not be adjudged a public nuisance and abated in accordance with the provisions of this ordinance. The owner of said building shall be entitled to appear in person, by counsel, or both, and shall be entitled to have witnesses summoned and examined in his behalf.
“See. 4. Notice shall be deemed sufficiently given if served upon the owner in person by,a peace officer of the city of Texarkana, Texas, if the owner be a nonresident of the city of Texarkana, Texas, then such notice shall he deemed sufficient if given by mailing such notice by registered letter to the last known address of the said owner, and the 10 days’ time required herein for notice to be given shall commence to run one day after the posting of the letter herein provided for.
“Sec. 5. If after the hearing provided for in paragraph 2, the city council shall by a three-fifths vote declare that the said building complained of is a public hiuisance, .the city council shall order said nuisance abated, by ordering the same torn down under the supervision of the city engineer, who shall be authorized to sell the same after so torn down, to the highest bidder for cash, after advertising the sale for 10 days prior to said sale in some newspaper published in the city of Texarkana, Texas, and the proceeds of such sale shall go first to the satisfaction of the cost of tearing down, advertising and selling said building, and the remainder, if any, will be paid to the owner of said building.
“Sec. 6. If, after the hearing provided for, the complaint and the facts alleged therein are sustained, the owner of such building immediately appears before the city council, and agrees to put said building in a stable, satisfactory and sanitary condition within 30' days, then, and in that event, the city council may grant and allow such owner such 30 days in which to do so, and after the expiration of the 30 days, the city council may hear proof as to whether said building has been placed in a stable, satisfactory and sanitary condition, and, if it finds that said building has not, then the city council shall order the city engineer to have same torn down after 10 days from said second hearing.”

Complaint was made by two citizens of Texarkana, to the effect that defendant in error’s building was a nuisance substantially within the definition set forth in section 1 of the ordinance quoted above; whereupon the building was condemned and destroyed, the ordinance being complied with' in all material respects, unless we should say that the notice should have been served upon defendant in error’s husband as well as herself, a question which is unimportant at this time.

The trial court concluded that the order of the city council finding that the building was a nuisance, and ordering its abatement, was conclusive — in fact, res adjudicata — and that further inquiry as to the question of nuisance was precluded. Among other findings made by the trial court was the following:

“I find that the evidence on the trial of this case upon the question of the condition of said house, and whether or not it constituted a nuisance, was sharply conflicting, but sufficient to warrant the judgment of the city council, and should have been submitted to the jury, as requested by plaintiff’s counsel in argument, but for the conclusion of the court, as a matter of law, that the hearing before the city council, and its judgment condemning said property, was res adjudicata and conclusive and binding-on this court.”

This case is controlled by the opinion of this court in the case of Crossman v. City of Galveston, supra. Under that case and the authorities there cited neither the Uegisla-ture nor the city council can by a declaration make that a nuisance which is not in fact a nuisance; and the question afe to whether or not the building here involved was a nuisance was a justiciable question, determinable alone by the court or jury trying the case. Crossman v. City of Galveston (Tex. Civ. App.) 247 S. W. 810, not yet [officially] reported, and authorities there cited; Stockwell v. State, 110 Tex. 550, 554, 221 S. W. 932, 12 A. L. R. 1116. The ordinance makes final the determination of the city council oil the question as to whether or not the building under investigation is a nuisance. This the city was without authority to do, and this ordinance, in so far as it makes final the orders of the city council 'declaring the building a nuisance, and ordering its summary abatement, is void.

If the building was in fact a nuisance, the city may defend on that ground, but its own definition of a nuisance, set forth in its ordinance, is not conclusive and binding on the courts. The question as to whether or not the building is a nuisance remains a jus-ticiable question. Authorities supra. The action of the city council with reference to this building was no warrant for its destruction, and the proceedings of the city council leading up to the destruction of the building are not admissible in evidence in favor of the city in a suit for actual damages only. Whether or not the building here in controversy was in fact a nuisance is to be established by legal and competent evidence, in the same manner as any other fact, and the burden is upon the city to do this. Crossman v. City of Galveston, supra, and authorities there cited.

Upon another trial of the case the issue will be whether or not the destroyed building was at the time and under the circumstances in fact a nuisance, and, if it was not, then defendant in error is entitled to recover its value as it existed before destruction. If the finding should be that the building was a nuisance in fact, then the defendant in error is entitled only to-the reasonable value of the material therefrom after its demolition, less the reasonable cost' of the abatement of the nuisance. 28 Cyc. p. 756.

The judgment of the Court of Civil Appeals is affirmed. 
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