Dibrell v. City of Coleman

• Decision Date: 18 November 1914
• Docket Number: (No. 5414.)
• Citation: 172 S.W. 550
• Parties: DIBRELL v. CITY OF COLEMAN et al.
• Court: Texas Court of Appeals

Page 550

172 S.W. 550

DIBRELL v. CITY OF COLEMAN et al.

(No. 5414.)

Court of Civil Appeals of Texas. Austin.

November 18, 1914.

Rehearing Denied January 6, 1915.

Appeal from District Court, Coleman County; John W. Goodwin, Judge.

Action by J. B. Dibrell, Jr., against the City of Coleman and others. From a judgment dissolving a temporary injunction, plaintiff appeals. Reversed and remanded.

J. K. Baker and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. Critz & Woodward and Garland Woodward, all of Coleman, for appellees.

JENKINS, J.

This is an appeal from a judgment of the district court of Coleman county dissolving a temporary injunction against the officers of Coleman City, theretofore granted, restraining them from prosecuting appellant for keeping hogs within the corporate limits of said city. As the case was decided on general demurrer, the allegations of appellant's petition, for the purpose of this appeal, must be taken as true.

These allegations, in addition to those of the official character of the defendants, are, in substance: That the city of Coleman is incorporated under the general laws of this state. That the corporate limits of said city include a superficial area of more than two square miles, from 50 to 75 per cent. of which is pastural land, used only for agricultural and pastural purposes, much of which, by reason of being subject to overflow, is unfit for any other purpose. The petition particularly describes numerous tracts, ranging from 5 to 70 acres, alleged to be inclosed under separate fences, and used only for agricultural and pastural purposes, some of which are alleged to be occupied as places of residence by the owners, and others are alleged to be unoccupied by any residence. The tracts thus particularly described, exclusive of the tract occupied by appellant, aggregate 419 acres. That about 50 per cent. of the inhabited portion of said city is sparsely inhabited. That there is no sewer system in said city, except in the business and thickly settled portions thereof, and that said system does not extend to that portion of the city where appellant's premises are situated. That said premises are situated on the southern boundary of said city in a sparsely settled portion thereof. That said premises consist of 27 acres of land inclosed with a hog-proof fence, 20 acres of which are under a separate inclosure; and that there are no residences thereon, except the one occupied by appellant, and one occupied by a tenant, about 500 yards northwest. That there are no residences in said city south of appellant's premises and none west. That the nearest residence in a northerly direction is 200 yards distant, and the nearest in an easterly direction is distant a quarter of a mile. That there are from 50 to 75 acres of unoccupied pasture land lying east of appellant's premises. Appellant alleges that he is the owner of 1½ acres of land in another portion of said city, 500 yards distant from any residence, and adapted to raising hogs thereon.

The petition sets out the ordinance complained of, which makes it unlawful for any person "to keep or detain or to permit to be kept or detained any hog in any inclosure upon any premises occupied or controlled by such person within the corporate limits of the city of Coleman," declaring such act to be "a public nuisance, and injurious to the public health and comfort." That each day any hog shall be so kept or detained shall constitute a separate offense, and affixing a penalty of not less than $5 nor more than $10. It is further alleged that since about November 1, 1913, appellant has kept on said premises only one brood sow, and from about February 10, 1914, to March 20th her eight pigs. That appellant keeps on said premises a number of milch cows and sells separated cream and feeds the skimmed milk to said sow and to her pigs while he keeps them. That he is thus enabled to utilize his skimmed milk, which would otherwise be wasted, and to maintain said brood sow and her pigs with practically no expense to himself. That he is able to sell his pigs at one month old at from $3 to $4 each, and that his profit from keeping said sow and selling her progeny is $50 per annum. That he owns no land outside of said city, and that if said ordinance is enforced it will destroy his business of raising pigs, and destroy the value of his skimmed milk, which, on account of there being no sewerage on or near said premises, he would be compelled to throw upon the ground, and thereby create a breeding place for flies, which would carry disease germs and endanger the health of himself and family, and other inhabitants of Coleman City. That his pen in which said sow is kept is about 8 by 15 feet, and is partly floored and roofed, and that the unroofed portion is covered with coal cinders and ashes to a depth of from six to eight inches, and never becomes sloppy or muddy, even in the rainiest season. That at all times he has kept said pen in a sanitary condition, and that no odor, offensive to himself and family, or to any one else, has ever arisen therefrom, and that said pen has not endangered the health or comfort of any one, and, in the manner in which the same is kept, will not do so. It is further alleged that said premises are suitable for keeping hogs for hire, and that he believes he would be able to lease his pasture for hogs and particularly for brood sows to run therein to other people in said city at a profit of from $100 to $200 per annum, but for the fact that such persons are deterred by the existence of said ordinance and fear of prosecution thereunder from keeping hogs in his said inclosure. It is further alleged that a number of other citizens who own inclosed agricultural lands in the thickly settled portions of said city (naming four such persons and alleging that there are others) are desirous of keeping hogs on their premises, but are deterred from so doing by reason of the existence of said ordinance, and of threatened prosecutions thereunder, and that he brings this suit, not only in his own behalf, but in behalf of the persons named and of all others similarly situated.

Appellant alleges that he has heretofore been arrested by the officials of said city for violating said ordinance, and tried and acquitted, notwithstanding which said officials are threatening to, and if not restrained will, prosecute him for each day that said hogs have been or shall be kept upon said premises. It is alleged that said ordinance is void as being in contravention of section No. 1 of the fourteenth amendment of the Constitution of the United States of America; and of article No. 1, § 19, of the Constitution of the state of Texas. That he has no adequate remedy at law, and that unless injunction is granted he will suffer irreparable injury to his property rights.

Assuming the allegations of fact in appellant's petition to be true, and taking judicial cognizance of those things which ought to be generally known (Ex parte Botts, 154 S. W. 221, 44 L. R. A. [N. S.] 629), we think that the ordinance complained of is void. A municipal corporation has no authority, except that granted in its charter, either directly or by reasonable implication. Ex parte Battis, 40 Tex. Cr. R. 104, 48 S. W. 514, 43 L. R. A. 863, 76 Am. St. Rep. 708; Ex parte Robinson, 30 Tex. App. 493, 17 S. W. 1057.

The city of Coleman is authorized by its charter "to abate and remove nuisances and to punish the authors thereof by penalties, fine and imprisonment, and to define and declare what shall be nuisances * * * and direct the summary abatement thereof." R. S. art. 844. But the power to define a nuisance does not empower a city to make that a nuisance which is not such per se, and does not become such by reason of the surrounding circumstances or the manner in which it is done. Const. of Texas, art. 1, § 19; San Antonio v. Salvation Army, 127 S. W. 860; Pye v. Peterson, 45 Tex. 312, 23 Am. Rep. 608; Ex parte Robinson, 30 Tex. App. 493, 17 S. W. 1057; Ex parte Glass, 49 Tex. Cr. R. 87, 90 S. W. 1108; Milliken v. City Council, 54 Tex. 394, 38 Am. Rep. 629; Ex parte Patterson, 42 Tex. Cr. R. 256, 58 S. W. 1011, 51 L. R. A. 654; St. Louis v. Heitzeberg, 141 Mo. 375, 42 S. W. 955, 39 L. R. A. 551, 64 Am. St. Rep. 516; Comfort v. Kosciusko, 9 Am. & Eng. Anno. Cases, 178; Dobbins v. Los Angeles, 195 U. S. 235, 25 Sup. Ct. 18, 49 L. Ed. 175; State v. Gilman, 33 W. Va. 146, 10 S. E. 283, 6 L. R. A. 847; Grossman v. Oakland, 30 Or. 478, 41 Pac. 5, 36 L. R. A. 612, 60 Am. St. Rep. 832; St. Louis v. Packing Co., 141 Mo. 375, 42 S. W. 955, 39 L. R. A. 551, 64 Am. St. Rep. 516; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497, 19 L. Ed. 984.

To keep a hog is not, within itself, unlawful, and is not a nuisance per se. It can scarcely be contended that to keep a single hog in an inclosure of 20, 60, or 70 acres, such as is alleged to exist within the corporate limits of the city of Coleman, and in the sparsely settled portions thereof, would produce any disagreeable odor, or interfere with the comfort or health of any inhabitant of that town, for which reason the ordinance is too broad and sweeping, and cannot be upheld as a legitimate exercise of the power to suppress nuisances. The facts alleged by appellant show that keeping a hog by him is done under such surroundings and in such a manner as not to injuriously affect any one.

We do not mean to say that an ordinance forbidding the keeping of hogs in the business or thickly inhabited portion of a city would be void as applied to a particular individual who kept his hog pen in a cleanly and sanitary condition. It is well known that hog pens, in the manner that they are commonly kept, do become a nuisance to those living in close proximity thereto, and it might be too great a burden on a city, whose duty it is to protect its inhabitants from nuisances, to employ an inspector of hog pens, to see that they were kept sanitary. We are passing...