Elliott v. Ferguson

• Decision Date: 29 October 1904
• Citation: 83 S.W. 56
• Parties: ELLIOTT et al. v. FERGUSON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 56

83 S.W. 56

ELLIOTT et al. v. FERGUSON et al.^*

Court of Civil Appeals of Texas.

October 29, 1904.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Suit by W. S. Ferguson and others against J. T. Elliott and others. From a judgment for plaintiffs, defendants appeal. Reversed.

W. A. Kemp and W. A. Evans, for appellants. Harry P. Lawther, for appellees.

TALBOT, J.

This suit was instituted by appellees Ferguson, Turner, Skillen, Lawther, Watts, Farrisch, Shaffner, Beeman, Wokaty, McCoy, Kearby, and Froelich, against appellants, J. T. Elliott, E. C. Smith, G. D. Smith, and H. F. Smith, to enjoin, as a threatened nuisance, the location by appellants of a public cemetery on the lands described in appellees' petition. Appellees alleged substantially that appellants had acquired the land described in appellees' petition for the purpose of maintaining upon it a public cemetery for the interment of dead bodies; that in pursuance of such intention they had caused said land to be surveyed and subdivided into a number of lots, which they proposed selling to the public for burial purposes, and had placed on record in the office of the county clerk of Dallas county a map of said lots; that Ferguson owned a tract of about eight acres adjoining on the north and west the lands upon which the proposed cemetery was about to be established; that Skillen, Turner, and Froelich owned tracts of land comprising about four, eight, and four acres, respectively, lying to the south of said cemetery lands, the tract of Skillen immediately adjoining the same on the south, and that of the said Turner adjoining Skillen's tract on the south, and that of Froelich adjoining said Turner's land on the south; that the location of said Ferguson's, Skillen's, Turner's and Froelich's land with reference to appellants' lands surveyed and mapped for cemetery purposes was shown by the map or plat thereof attached to appellees' petition. Appellees further alleged that the said Watts, Farrisch, Kearby, and McCoy jointly owned as tenants in common a tract of land of about 19.09 acres, lying south of said lands, subdivided and mapped by appellants for said cemetery, and distant therefrom as per scale shown in said map or plat attached to their petition. Appellees' petition further represented that Lawther, Shaffner, Beeman, and Wokaty resided with their families upon land of which they were seised and possessed in fee in the near vicinity of the lands to be appropriated by appellants to cemetery purposes, and that the location of their residences was shown on the plat of said cemetery lands; that appellees Ferguson, Skillen, Turner, Froelich, Lawther, Shaffner, Beeman, and Wokaty are heads of families, and each reside and have a well of water upon their respective premises, from which they obtain water for drinking and household purposes; that upon the 19.09 acres, owned by the other appellees there are situated valuable springs of water known as "Buzzard Springs," which constitute in the main the value of the said lands; that the site of said proposed cemetery, together with the lands of appellees, overlies an underground bed of water, from which the wells and springs of all of appellees are fed; that the surface of the cemetery property is higher than the lands of all the appellees; that said cemetery property descends in all directions towards the lands of all the appellees, and very rapidly towards the east, south, and west in the direction of the lands of appellees Turner, Froelich, Watts, Farrisch, Kearby, and McCoy; that the subsoil under the proposed cemetery property is composed of sandy clay and sand, and is loose and porous, and will receive and conduct water rapidly; that water falling on the surface of said cemetery would be taken up as rapidly as it falls, and would reach the depth of the water bed mentioned; that the wells of water and springs of water on the lands of all the appellees are fed from this underground bed of water; that the burial of dead bodies in said land proposed to be used by appellants for cemetery purposes would pollute and poison the water in the wells and springs of appellees, would poison and pollute the air about their houses, and endanger the health and lives of appellees and their families, and render the real estate of all the appellees valueless for residence purposes. Appellees further alleged "that noisome odors and vapors would arise from the dead bodies interred in said proposed cemetery and from the soil in which said bodies will be buried, and would pollute and fill with stench and poison the air surrounding appellees' houses, and would destroy the property rights of appellees in defiance of their comfortable and healthful use and enjoyment of their homes."

Exceptions were urged to appellees' petition, which were overruled, and this action of the court is presented for revision by appellants' first, second, and thirty-seventh assignments of error. The substance of the exceptions are: (1) That the petition is vague and indefinite in the statement of the facts on which appellees rely for an injunction, and does not state with certainty and exactness the distance of the proposed cemetery from the wells and springs of appellees, and does not set forth such facts as will show that a nuisance will inevitably result from the establishment of the cemetery proposed; (2) that so much of appellees' petition as complains of the pollution of the atmosphere around and about their houses is too general, vague, and indefinite, and fails to set out specifically such facts as entitle them to the injunction prayed for; (3) that appellees' petition does not contain such specific averments of facts as shows a cause of action, and such defect is not cured by reference to the map attached as an exhibit to said petition.

It would seem that the map attached to appellees' petition and referred to as a part thereof is not such an exhibit as is authorized by rule 19 for the government of the district courts, but, if it is, it will not relieve the pleader from the necessity of alleging the facts to which the exhibit relates. Such exhibit, under the rule mentioned and the decisions of this state, can only be looked to in aid and explanation of necessary allegations, but cannot be substituted for or take the place of such allegations themselves. If, however, we were authorized to hold that the map attached to appellees' petition in this case could be looked to to supply the necessary allegations as to the location and distance of their lands from the lands which appellants propose to use for cemetery purposes, still we are of the opinion that the petition is defective and obnoxious to appellants' demurrers in that respect as to some of said lands, unless it can be said that the general allegation that the surface of the cemetery property is higher than the lands of all of the appellees and descends in the direction thereof is sufficient, without regard to the distance intervening. There are only two tracts—Ferguson's and Skillen's—alleged to be contiguous to the cemetery lands. It is alleged that the 19.09 acres owned by Watts, Farrisch, Kearby, and McCoy lie south of the cemetery, "and distant therefrom as per scale shown in said map or plat" attached to appellees' petition. These are all the allegations in reference to the location of that tract, and a resort to the map fails to reveal any such tract at all. The map does not show the number of acres of any tract delineated thereon, but does show south of the cemetery land small tracts with the names of Skillen, Turner, and McCoy written upon them; and to the southwest—not south —we find within lines supposed to represent a different tract the names of Watts, Farrisch, Kearby, and a number of persons not parties to this suit, written. McCoy's name does not appear therein, but does appear in another small tract. There is nothing upon the map by which the 19.09 acres mentioned in the petition can be identified or located, and the allegation that it lies south of the cemetery is refuted by the absence of any such tract appearing thereon. It is said that the lands owned by Lawther, Shaffner, Beeman, and Wokaty are situated "in the near vicinity" of the lands to be appropriated to cemetery purposes, and that the locations of their residences are shown on the said map, but a reference to the map discloses that there is nothing upon it indicating the location of the appellees' residences or wells, except Shaffner's. There is a small black dot appearing upon Shaffner's tract, with the word "Well" written near it. Wokaty's name does not appear upon the map at any place, and we find the name "Lawther" written north of the cemetery land and Ferguson's tract with no lines indicating the boundaries of his land, and Beeman's to the west in the same condition, both apparently outside of the lines intended to represent the map referred to in the petition as its exhibit. We think the petition good in so far as it relates to the location of the land owned by Ferguson and Skillen, and probably Turner, Shaffner, and Froelich, but insufficient in respect to the location of the lands owned by the other appellees. Froelich's name, like Wokaty's, does not...