Dallas Land & Loan Co. v. Garrett

• Decision Date: 20 June 1925
• Docket Number: (No. 9604.)
• Citation: 276 S.W. 471
• Parties: DALLAS LAND & LOAN CO. v. GARRETT.
• Court: Texas Court of Appeals

276 S.W. 471

DALLAS LAND & LOAN CO. v. GARRETT.

(No. 9604.)

Court of Civil Appeals of Texas. Dallas.

June 20, 1925.

Rehearing Denied October 24, 1925.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by the Dallas Land & Loan Company against R. L. Garrett. From an order dissolving temporary injunction, plaintiff appeals. Reversed and remanded, with instructions.

Austin C. Hatchell, of Dallas, for appellant.

Callaway, Dalton & Callaway, of Dallas, for appellee.

LOONEY, J.

This appeal is from an order of the court sustaining a general demurrer to appellant's petition. As the questions presented for review challenge the correctness of the action of the court sustaining the demurrer, it becomes necessary to state the substance of appellant's petition:

Appellant alleged that it owned lot No. 12 in block No. 6, Munger Avenue addition to the city of Dallas, upon which was a good residence occupied by tenants; that appellee owned lots Nos. 10 and 11 in said block, and had under construction on lot 10, then nearing completion, an apartment house consisting of 12 apartments, and was threatening to erect, and would erect unless restrained, a garage house on the boundary line between appellant's lot No. 12 and appellee's lot No. 11, 100 feet in length, subdivided into 12 compartments, for the accommodation of the tenants of the apartment house; that same is to be located 6 feet from the house of appellant, and will extend the full length of said house; that the back wall of the garage is to be of brick, 10 feet in height at the rear, gradually increasing to 12 feet in front, and, when completed, will shut off light and air from appellant's house, and the eaves of the same will extend over on appellant's lot the full length of the building, thus appropriating a part of appellant's lot; and, further, that the roof will be so constructed as to cause the water from rainfalls to be carried and emptied on appellant's lot, all to its great damage.

It is alleged that it is wholly unnecessary for appellee to erect the garage building in the manner and at the place contemplated, as he has sufficient room elsewhere on said lots where the same can be placed without injury to himself or damage to appellant.

It is further alleged that the garages will at all times have from 6 to 12 automobiles, day and night; that they will contain gasoline, oil, and grease that will leak, causing trash, filth, and germs to accumulate in the garage house, will emit noxious, offensive, unpleasant and unhealthful gases, odors, and vapors, thus polluting the atmosphere, which will, on account of the location of the garage building, be carried into the house of appellant, materially discomforting, annoying, and injuring persons residing therein, and to the detriment and damage of appellant's property; and that by reason of these conditions the fire hazard and cost of insurance on appellant's property will be increased.

It is further alleged that the proposed erection of the garage building in the manner and place designated is uncalled for, is done with malice and spite on the part of appellee, with the specific intent and design on his part to injure and harass appellant, to its damage in the sum of not less than $2,500.

Appellant prayed for a temporary writ, to be made final on hearing, and for such damages as it may have suffered by the time the case is tried. The judge granted the temporary writ on condition that appellant execute a bond in the sum of $500, restraining appellee from erecting, or attempting to erect, the garage building, and that he be notified to appear before the court May 23, 1925, and show cause, if any, why the restraining order should not be continued in force until further orders of court.

On the hearing of appellee's motion to dissolve the temporary writ the court sustained a general demurrer to the petition, and, as appellant declined to amend, the same was dismissed and the writ dissolved, from which order of dissolution appellant prosecutes this appeal. The court entered an order suspending the effect of the order appealed from, and continued in force the temporary writ pending appeal.

The first question for our consideration is presented by the motion filed in this court by appellee to dissolve the temporary writ, continued in force by order of the trial court. This motion is based on the proposition that the trial judge was without authority to enter the suspending order, for the reason that the court, having dissolved the injunction and dismissed the petition, lost all jurisdiction and authority. Article 4644, Vernon's Ann. Civ. St. Supp. 1922, makes provision for an appeal from an order of the court dissolving a temporary writ of injunction, and in this connection provides as follows:

"* * * But such appeal shall not have the effect to suspend the order appealed from, unless it shall be so ordered by the court or judge who enters the order. * * *"

The general demurrer urged by appellee to the petition of appellant was one of the grounds of the motion for the dissolution of the temporary writ. It challenged, at the outset, the sufficiency of the petition to entitle appellant to injunctive relief, and, on being sustained by the court, dissolved the writ theretofore issued just as effectually as if the order had resulted from a hearing on the facts. The right to appeal is in nowise conditioned on the particular ground, or grounds, on which the motion to dissolve may be predicated, whether of law or fact, and the authority of the court to suspend, during the pendency of the appeal, the order appealed from exists in either case. Vogelsang v. Gray (Tex. Civ. App.) 224 S. W. 535, 539.

The other grounds urged by appellee in his motion to dissolve the temporary writ have been considered, but as they are, in our opinion, without merit are overruled.

On the appeal proper, appellant contends that the trial court erred in sustaining a general demurrer to its petition and in dismissing the same for the reason, among others, that it appeared from its allegations, admitted to be true by the demurrer, that appellee was in the act of constructing, and would, if not enjoined by the court, construct, a garage house with the eaves thereof extending over onto the lot of appellant, thus appropriating to his use and benefit a strip of appellant's land, and that the roof of the structure will be built so as to conduct and empty the water of successive rainfalls on appellant's lot, injuring and damaging the same. The allegation of appellant that the eaves of the structure to be erected by appellee will extend over onto the lot of appellant was, in effect, an allegation...