Ainsworth v. Oil City Brass Works

• Decision Date: 23 September 1954
• Docket Number: No. 4985,4985
• Citation: 271 S.W.2d 754
• Parties: Paul H. AINSWORTH et al., appellants, v. OIL CITY BRASS WORKS, appellee.
• Court: Texas Court of Appeals

Page 754

271 S.W.2d 754

Paul H. AINSWORTH et al., appellants, v. OIL CITY BRASS WORKS, appellee.

No. 4985.

Court of Civil Appeals of Texas, Beaumont.

Sept. 23, 1954.

Keith, Mehaffey & McNicholas, Beaumont, for appellants.

John H. Benckenstein, Beaumont, for appellee.

R. L. MURRAY, Chief Justice.

The appellants, Paul H. Ainsworth, et al., bring this appeal from a judgment of the District Court of Jefferson County in favor of appellee, Oil City Brass Works, in a suit brought by such appellee against them under the declaratory judgment statute, Article 2524-1, Vernon's Texas Civil Statutes Annotated.

The Oil City Brass Works, the appellee, alleged in its petition that it operates a machine shop, non-ferrous foundry and heavy forge shop, on Lots 1 through 6, inclusive, and the North 1/2 of Lot 7, Lots 8 through 12, inclusive, all in Block 27 of the Van Wormer Addition to the City of Beaumont in Jefferson County, Texas; that said machine shop and foundry and heavy forge shop are situated in the industrial section of the City of Beaumont, being bounded on the north by the T. & N. O. Railroad Company and on the south by Crockett Street and the Santa Fe Railway Company; that it began operations of a machine shop, nonferrous foundry and pattern shop in 1920 on a portion of the above land and in 1934 added a forge shop. Since 1934 it has operated on a portion of the described premises a heavy forge shop and said operations have been on a 24-hour basis continuously;

That prior to the addition of the forging shop in 1934 it purchased from C. H. Ainsworth, who was the father, husband, testator, trustee and brother-in-law of the parties named defendant, Lots Nos. 5 and 6 of said Block 27 of the Van Wormer Addition to the City of Beaumont, and that prior to and at the time of the conveyance of said lots by C. H. Ainsworth to the appellee he knew that the same was purchased from him by the appellee to be used for a forge shop and that appellee did in 1934 establish a forge shop on the property so purchased from C. H. Ainsoworth and located thereon forging hammers and from said date until the time of filing suit it had engaged in its operations and made numerous additions thereto, including additional forging hammers, all of which additions and improvements were made on said Lots 5 and 6 purchased in 1934;

That in January, 1953, appellant Paul H. Ainsworth complained to appellee of noise and vibrations coming from the appellee's business and claimed that the same invaded his property rights and threatened to bring action against the appellee to abate its operations on said premises as a nuisance and to recover damages as a result of the appellee's operations and further claimed that the land and improvements belonging to him and adjacent to appellee's property were about to be damaged by the continual operation of said plant and forgoing hammers; that the appellant Paul H. Ainsworth was the owner of Lots 11 and 12 of Block 26 of the said Van Wormer Addition, which premises are located south across Trinity Street from said forging shop; that Mrs. Clarie Rita Ainsworth was the owner of Lots 9 and 10 of said Block 26 of the Van Wormer Addition adjoining the property of Paul H. Ainsworth above described on the east; that the appellant Mrs. Mary E. Ainsworth, individually and as independent executrix and testamentary trustee of the estate of C. H. Ainsworth, deceased, holds legal title to Lot 7 of Block 27 and Lots 1 through 6, inclusive, of Block 26 of said Van Wormer Addition and that said Lot 7 was south of and adjoining appellee's forging shop and said Lots 1 through 6 lie across the street and to the west of said forging shop; that the appellants Paul H. Ainsworth and Mary E. Ainsworth, and other parties named defendant in the suit who are not appellants here, are beneficiaries of said testamentary trustee and as such have beneficial interest in the property described above; that the property alleged to be owned by the appellants having improvements thereon all of which were constructed many years ago;

That the appellants, since the beginning of its operations of its forging shop in 1934 and its many additions thereto, in particular the additional forging hammers installed in 1937 and in January, 1953, have not used its property in any unusual or excessive way or manner; that it has not necessarily caused injury or damage or harm or inconvenience to the appellants in their use and enjoyment of their property, taking into consideration the use made of both properties, by the appellants and the appellee; that its use of its premises has not been substantially offensive, discomforting and annoying to persons of ordinary sensibilities, tastes and habits living in the localities where these premises are situated;

That it has used its premises as a forging shop since 1934 and 1937 in continuous operations 24 hours a day and it is now and in the future will be impossible for it to operate its forging shop without the use of such forging hammers;

That the appellants, because of the facts alleged above and particularity because of the conveyance of said premises for a forging shop by their predecessor in interest, C. H. Ainsworth, and the continuous operation of such forging shop by the appellee without any complaint whatever by the said C. H. Ainsworth, deceased, or by the parties named defendant in the petition up to January, 1953, the appellants are now estopped to complain of the operation of such forging shop, its resultant noises and vibrations;

That the acts of which the appellants complain were and are the natural consequence of the operations of the forging shop, together with its machine shop, nonferrous foundry and pattern shop; that if the appellants have been injured and damaged, which is not admitted but denied, such alleged causes of action for invasion of their rights accrued not later than 1937, and the same is barred by the statutes of limitation of Texas; that neither the appellants nor the appellee have sought by any other legal action to have adjudicated their respective rights resulting from the operation of its said shops and foundry, including the additional forge hammer erected in January, 1953;

The appellee prayed for a declaratory judgment of the court, determining the rights of the parties in their relation to the operation of its shops and foundry with all its additions and improvements, and that the court determine and hold that the operation of its business with the said additional forging hammer constructed in January, 1953, as not a private or public nuisance and that the appellee has not and will not invade the rights of the appellants or any of them by the continual use of its plant and business, together with the said forge hammer; in the alternative it prayed that if the court should find the appellants' rights have been invaded by the operation of its forging shop and hammers that the court hold and find that the appellants are estopped; and further in the alternative that any action on the part of the appellants for abatement or for damages be held to be barred by the statutes of limitation, and for general relief.

The appellants answered by special exception, alleging that the allegations of the petition were not sufficient to show a case which falls within the provisions of the Declaratory Judgment Act of the State of Texas, and further answered by a general denial.

The case was tried to a jury and in response to special issues submitted by the court the jury, in its verdict, found as follows:

(1) That an actual controversey did not exist between the appellee and appellants involving the operation of appellee's forge shop; (2) that C. H. Ainsworth on and before December 4, 1929 knew that the Oil City Brass Works intended to use the property which it was purchasing from him for a forge shop; (3) that vibrations have been transmitted from the forging hammers of the appellee to the property belonging to the C. H. Ainsworth Estate; (4) that such transmission of vibrations constituted a nuisance; (5) that such nuisance began in 1945 or 1946 and (6) that such nuisance has been continual from that time; (7) that such nuisance was permanent; (8) that vibrations have not been transmitted from the forging hammers to the property belonging to Paul H. Ainsworth.

Both parties moved the court for judgment on the verdict and in addition thereto the appellee moved the court to disregard the finding of the jury in answer to Special Issue No. 1, to the effect that no actual controversy existed between the parties involving the operation of the forging shop. The court granted such motion and found in its judgment that from the undisputed evidence an actual controversy did exist between the parties, and that the answer to such Special Issue No. 1 should be and was disregarded in the judgment.

The court further provided in its judgment in behalf of the appellee as follows:

'And it further appearing to the Court that the defendants' respective father, husband and predecessor in title to Lot No. Seven (7), Block 27 and Lots One (1) through Six (6), inclusive, Block 26 all in the Van Wormer Addition to the City of Beaumont, Jefferson County, Texas, in December, 1927, conveyed to the plaintiff Lots Five (5) and Six (6), Block 27 of the said Van Wormer Addition for the purpose of establishing and operating thereon a heavy forging shop, with the understanding that the plaintiff would not use said lots in a competitive business, to-wit: The piano and furniture business and the tenant house business, and that the said C. H. Ainsworth never complained of the operations of said forge shop during his life time; that the defendant, Paul H. Ainsworth, has assisted his mother, Mary E. Ainsworth, and has represented her as trustee of said property and has handled the properties of the trust estate for her; that the said defendants and Lot No. Seven (7), Block 27 and Lots One (1) through Six (6),...