Dunn v. City of Austin

• Decision Date: 24 May 1889
• Citation: 11 S.W. 1125
• Parties: DUNN <I>et al.</I> <I>v.</I> CITY OF AUSTIN <I>et al.</I>
• Court: Texas Supreme Court

11 S.W. 1125

DUNN et al.v.

CITY OF AUSTIN et al.

Supreme Court of Texas.

May 24, 1889.

Appeal from district court, Travis county.

Fisher & Townes, for appellants. Fiset & Miller, for appellees.

STAYTON, C. J.

The petition in this cause on demurrer was held insufficient, and, there being no request for leave to amend the injunction granted in chambers, was dissolved and the bill dismissed. From that judgment this appeal is prosecuted, and that the averments of the bill may be understood, we here insert it. It is as follows: "(1) Your petitioners, M. S. Dunn, H. A. Fitzhugh, Levi Scott, William Wellmer, and Vories P. Brown, all of whom reside in Travis county, Texas, complaining of the city of Austin, and J. G. Palm, and Swante Palm, who reside in the state and county, respectfully represent (2) that the city of Austin is a corporation duly and legally chartered under and by virtue of an act of the legislature of said state of Texas, entitled `An act to incorporate the city of Austin,' approved April 5, 1873, and an act amendatory thereof, approved April 17, 1883, having its locus and principal place of business in said state and county; (3) that the petitioners bring this suit in their own behalf, and in the interest of a large majority of the inhabitants and real estate owners of the north-eastern part of said city and the territory contiguous thereto, known as outlots Nos. 36, 37, 38, 45, 46, and 57, subdivision B, said parties numbering, say seven hundred and fifty persons, and being too numerous to all join herein by name; (4) that the old cemetery of said city of Austin is located in outlot 40, division B, in the north-eastern part or corner of the corporate limits of said city, and the lands owned and inhabited by petitioners, and those for whom they act, lie in that neighborhood, almost surrounding said cemetery, — some immediately adjacent thereto, and some separated therefrom a short distance by intervening property; (5) that said section of said city and the adjacent territory so owned and occupied by plaintiffs, and those they represent, is thickly settled, a large portion of the inhabitants of said city, to-wit, say seven hundred and fifty, having residences and doing business therein; (6) that heretofore, to-wit, on or about July 3, 1888, defendant J. G. Palm, acting with full knowledge, consent, and approval of defendant Swante Palm, who then owned and now owns the land embraced in said proposition, and for whom, as plaintiffs are informed and believe, said J. G. Palm was acting, proposed to the city council of said city of Austin to enlarge the limits of said old cemetery by adding thereto about two acres of ground, offering to give the city twenty lots, and to use the remainder himself for speculative purposes in selling burial lots therein; (7) that thereafter, on September 3, 1888, the said city, by resolution of its council, accepted a modification of said proposition, by which it was to receive from said Palm twenty-four lots, and was to extend the fence so as to include the addition proposed by him, and gave to him the right to use the same for cemetery purposes, a copy of which resolution, marked `Exhibit A,' is hereto attached, and prayed to be taken as part hereof; (8) that thereafter, to-wit, on or about September 3, 1888, said J. G. Palm, again acting with full knowledge, acquiescence, and consent of said Swante Palm, owner aforesaid, proposed still further to enlarge the boundaries of said cemetery so as to make it include an eight-acre tract, lying adjoining thereto, he proposing to give the city a portion thereof and reserve the balance for speculative purposes in sale of burial lots; (9) that on same date, to-wit, on or about September 3, 1888, the city council accepted said second proposition, by resolution of said date, a copy whereof is hereto attached, marked `Exhibit B,' and prayed to be taken as part hereof; that said land, referred to in said propositions and resolutions, lies immediately north-east and by the side of and adjoining the old city cemetery, and is part of outlot No. 39, division B, and is within the corporate limits of said city of Austin; (10) that by provisions of the charter of said city it is authorized to acquire, own, and hold real estate for cemetery purposes without the limits of said city, and in pursuance thereof it has acquired and now owns and has in its possession a large tract of, say 120 acres, of land lying outside said city limits, and in a sparsely-settled neighborhood, reasonably accessible, and which was purchased by it for cemetery purposes, which can be used by it therefor without detriment to the health or property of any of the inhabitants of said city, or other persons; but instead of using same it, the said city, is attempting to add to the old cemetery as aforesaid; (11) that the defendants, acting together, as shown by said propositions and resolutions, and in divers and sundry other ways, are threatening, attempting, and proceeding to enlarge the said old cemetery, and appropriate said eight or ten acres of land lying within the city limits, and in a thickly settled and inhabited portion thereof, to be used for purposes of burial of dead bodies; (12) that to do so will largely damage and irreparably injure your petitioners, and those for whom they act, in a special manner; in decreasing and depreciating the value of their respective properties aforesaid, situate adjacent and near thereto; in contaminating the atmosphere around and over same, and poisoning the waters of their wells with noxious gases and other deleterious substances, thereby rendering their said premises sickly, and making it dangerous to the health of themselves and families to live thereon or use same for business purposes; depriving them, to a large extent, of the use and enjoyment thereof, for which injury and damage there is and can be no adequate remedy at law,—wherefore plaintiffs, for themselves and in behalf of those whom they represent, pray your honor now to issue your most gracious writ of temporary injunction, restraining and enjoining the said city of Austin, J. G. Palm, and Swante Palm, and each of them, and their respective officers,...