Getz v. Boston Sea Party of Houston, Inc., 17250

• Decision Date: 05 October 1978
• Docket Number: No. 17250,17250
• Citation: 573 S.W.2d 836
• Parties: Alan GETZ, Appellant, v. The BOSTON SEA PARTY OF HOUSTON, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 836

573 S.W.2d 836

Alan GETZ, Appellant, v. The BOSTON SEA PARTY OF HOUSTON, INC., Appellee.

No. 17250.

Court of Civil Appeals of Texas, Houston (1st Dist.).

Oct. 5, 1978.

Sewell, Junell & Riggs, William A. Worthington, Houston, for appellant.

Elliot T. Gerstenhaber, Houston, for appellee.

EVANS, Justice.

This is an appeal from a temporary injunction.

The appellee operates a restaurant on a tract of approximately four acres of land on Westheimer Road, having leased the property from one of the defendants, Jerry Argovitz, in 1976. The four acre tract was at one time part of an eight acre unit which Argovitz divided in 1973 by a conveyance of the south one half to Johnny Lester. In late 1976 the appellant, Alan Getz, purchased the south four acres at a foreclosure sale, and at the time of the hearing he operated a "mini-warehouse" on that land. Apparently then unknown to any of the parties, a sewer line was located underneath the surface of the appellant's tract of land, connecting the sewer line serving the appellee's restaurant with a sewage discharge system located to the south of appellant's property.

Subsequent to the appellee's taking possession of the north four acres under its lease from Argovitz, a serious problem was discovered with respect to the sewer line "backing-up" into the restaurant. In order to alleviate this problem the appellee placed a "clean-out" drain on the southern part of the four acre tract, but the sewer continued to back-up, creating a sanitation problem and on occasion requiring the appellee to close its restaurant to the public. The appellee then had a work crew go on the appellant's property to check the sewer line through a manhole opening which had been located on the appellant's land, and this inspection indicated the sewer to be plugged with "grease, sludge, rocks, and boulders." After further entry was refused by the appellant, the appellee brought this action, contending that its only alternative was to connect its sewer line north to the city sewer line on Westheimer and seeking an injunctive right to enter upon the appellant's land for a period of six months in order to clean out the sewer line until the alternative connection could be made.

The trial court found that if the appellee was not permitted to enter upon the appellant's property for the limited purpose of unblocking the sewage system, a health hazard would be created endangering the lives of the appellee's employees and invitees and that a necessity existed for a limited time, not to exceed six months, to allow the appellee to construct an alternative sewage route. The trial court accordingly entered a temporary injunction order on June 8, 1978, enjoining the appellant for a period of 180 days from interference with the appellees' entry upon the appellant's premises for the limited purpose of unblocking the sewage system.

In three points of error the appellant contends that the trial court abused its discretion in entering the injunction order because it altered the status quo, because it granted the appellee complete relief at the temporary hearing, and because the appellee failed to plead a cause of action and show a probable right to relief.

It is not the purpose of a temporary injunction to transfer possession of property from one person to another, but rather to preserve the original status of the property pending a final decision on the rights of the parties. Morgan v. Brannon, 95 S.W.2d 509 (Tex.Civ.App. Eastland 1936, no writ); Story v. Story 142 Tex. 212, 176 S.W.2d 925, 927 (1944).

Where a party seeking injunctive relief with respect to the use of land fails to establish any right therein, the status quo is the owner's uninterrupted possession. Pena v. Le Comte, 35 S.W.2d 252 (Tex.Civ.App. San Antonio 1931, no writ); Payton v. Hurst Eye, Ear, Nose & Throat Hospital and Clinic, 318 S.W.2d 726, 731 (Tex.Civ.App. Texarkana 1958, writ ref'd n. r. e.). However, where the applicant for temporary relief proves the probability of some easement right in the property of another, the status quo is the applicant's continued right to exercise such possession of the property as the easement...