City of Wills Point v. Deen (192 S.W.2d 940, 1946)

BOND, Chief Justice.

This is an appeal from an order of the District Court of Van Zandt County denying, on hearing, appellant’s application for temporary injunction to restrain ap-pellee from further proceeding with repairs to a building located within the fire limits of the City of Wills Point, Texas.

The evidence is uncontroverted: In 1922 under legislative grant (Art. 1067, R.S.) to guard against calamities of fire, the City of Wills Point enacted an ordinance: “Section One. That it shall be unlawful for any person, firm or corporation to build, erect, move, replace, enlarge or repair any wooden building or structure whatsoever, constructed of wood or any other combustible material; or a building with a wooden roof; or a building with a frame of wood, and the walls or roof of iron or other metal; * * within the fire limits as therein described. “Section Three: Whenever any wooden building or any building of wood or iron now standing within said limits shall be damaged by fire or from other causes to the extent of fifty per cent of its value, the rebuilding or repairing of the same is hereby especially prohibited.” The City of Wills Point, perforce the provisions of this ordinance, instituted this suit seeking to prevent appellee from making needed repairs to his building. The building is a frame structure (50 x 100 feet), outside, ironclad walls and metal roof; inside, wooden ceiling, floor and partition walls. The building is substantially constructed, and for many years used as a warehouse for storage of grain, hay and other feed products. While the building is now within the fire limits, yet it was not within these limits at time of its construction. It was lawfully built, with large double-doors in front and rear to allow wagons and trucks laden with feed to enter and depart. In course of years, the iron siding an