The City of Snyder on June 28, 1960, brought an action in the District Court for an injunction against D. M. Cogdell, Sr.
Appellant presents one point of error in which it is urged that the court erred in denying the temporary injunction because the undisputed evidence showed that Cogdell was erecting and constructing a building within the City of Snyder without having first obtained a building permit as required by the zoning ordinance. The only violation complained of by appellant is the failure of Cogdell to obtain a permit. The evidence shows that the plans of the building fully comply with the requirements of the Building Code and the Zoning Ordinance.
The material portion of the City ordinance was introduced in evidence, and provides that:
Appellant contends that it was entitled to an injunction as a matter of law under Article 1011h of Vernon's Revised Civil Statutes of Texas, which provides in part as follows:
The granting or refusing of a temporary injunction is ordinarily within the discretion of the trial court, which, although not unlimited, will not be disturbed on appeal unless the record clearly shows an abuse of discretion. Texas Foundries, Inc. v. International Moulders and Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460; Southland Life Insurance Company v. Egan, 126 Tex. 160, 86 S.W.2d 722; City of Waco v. Marstaller, Tex.Civ.App., 271 S.W.2d 722.
Although injunction is a proper remedy to protect public welfare it is generally held that the courts will not exercise their equitable power to restrain the commission of a threatened act merely to prevent the violation of a municipal ordinance,
But it is also true that "under the law applicable to and the circumstances of a particular case, injunctive relief against the violation of a zoning ordinance may be denied." 58 Am.Jur. 1043. In the instant case a statutory provision contemplates that a city may prevent the unlawful erection of a building but the right is limited to "appropriate actions". The statute provides, in effect, that the proper authorities of a municipality "may institute any appropriate action * * * to prevent [the] unlawful erection" of a building. In our opinion the language of this statute does not destroy the discretion of the trial court and does not require the issuance of an injunction as a matter of law in every type and circumstance of violation. The facts of the particular case should be considered in determining what is the "appropriate action".
The evidence shows that the building being constructed by Cogdell is not a nuisance or a fire hazard. It is of masonry construction and of a type commonly known as a fireproof building. The wiring and plumbing comply with city regulations. The evidence shows that the plans of the building, the building itself and its location comply with the building code and zoning regulations. The building had been under construction for more than a month at the time suit was brought and for more than six weeks at the time of the hearing. It is thus apparent that a substantial part of the work had already been done. The court found that the completion of the building would not damage the city or the people in the area, but on the contrary would benefit them. The only violation complained of by appellant, or shown by the evidence, was the failure of Cogdell to secure a permit. Appellee's failure to secure a permit was inexcusable, but that fact, considered in connection with all other facts and circumstances in evidence, did not, as a matter of law, entitle appellant to the injunctive relief sought. The court was justified in concluding that the relief was not appropriate. It is our opinion that under these circumstances the court did not abuse its discretion in refusing to enjoin Cogdell from completing the building.
The judgment of the trial court is affirmed.