Boyd v. City of San Angelo
| Decision Date | 19 January 1927 |
| Docket Number | (No. 7046.) |
| Citation | 290 S.W. 833 |
| Parties | BOYD et al. v. CITY OF SAN ANGELO.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
Suit by C. E. Boyd and others against the City of San Angelo. Judgment for defendant, and plaintiffs appeal. Affirmed.
A. K. Doss, of Ballinger, and Upton & Upton, of San Angelo, for appellants.
Thomas & Lewis and Collins, Jackson & Sedberry, all of San Angelo, for appellee.
Appellants brought this suit to enjoin the city of San Angelo from erecting and maintaining a sewage disposal plant on lands owned by said city about 2½ miles from the city limits. The city owned a 15½-acre tract, on which it had made its location for said plant, situated between two irrigated tracts of land owned by appellants. Appellants lived in San Angelo, but alleged that they purposed to move to a residence on one of the above-mentioned tracts, which residence is about 800 feet north from said proposed plant; that the presence and operation of said plant would constitute a permanent nuisance, and would damage appellants' property; and prayed for relief as follows:
"Plaintiffs pray that, upon trial hereof, it be found as a fact that, by the erection of said sewer system and disposal plant upon said 15 acres of land, it will be a permanent nuisance, and that plaintiffs have judgment abating same, and enjoining the defendants from further erection of any such plant upon said tract of land, and, should it be determined that the expense of removing said disposal plant and requiring a location at another and different place would be greater than the damage to plaintiffs' lands, that then and in that event plaintiffs have judgment for their damages in the sum of the difference between the market value without the disposal plant and the market value with the disposal plant."
We do not deem it necessary to state here the grounds which appellants set up as constituting the proposed plant a nuisance, for the reason that we have reached the conclusion that appellants failed to introduce sufficient evidence, as a matter of law, to support a finding that this particular plant would constitute a nuisance.
Injunction is the proper remedy to prevent the creation of a nuisance by a municipal corporation. City of Marlin v. Holloway (Tex. Civ. App.) 192 S. W. 623, and authorities there cited. Appellants appear to assume that a sewage disposal plant, when located near a private residence, constitutes a nuisance per se. Such, however, is not true. It is now well recognized that a proper disposition of a city's sewage is essential to the health and welfare of its population, and affects the entire community. To that end the Legislature has recognized the necessity for such plants, and has vested cities with power of eminent domain, to condemn lands both inside and outside the city limits for the construction and operation of such plants. See R. S. 1925, art. 1175, subd. 29, article 1107, subd. 4, and article 1108, subds. 2, 3, and 4. In 29 Cyc. 1153, it is stated:
"A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings."
And again, on page 1159, it is said:
"One who uses his property in a lawful and proper manner is not guilty of a nuisance, merely because the particular use which he chooses to make of it may cause inconvenience or annoyance to a neighbor, and nothing which is legal in its erection can be a nuisance per se. ***"
It is obvious, therefore, that a sewage disposal plant is not a nuisance per se, but its location and the manner of its operation must determine that matter. And even when it becomes a nuisance it does not necessarily follow that such nuisance is permanent, or that its operation may be permanently enjoined. City of Austin v. Bush (Tex. Civ. App.) 260 S. W. 300.
Referring again to 29...
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