Goose Creek Ice Co. v. Wood, (No. 7958.)

• Decision Date: 08 April 1920
• Docket Number: (No. 7958.)
• Citation: 223 S.W. 324
• Parties: GOOSE CREEK ICE CO. et al. v. WOOD et al.
• Court: Texas Court of Appeals

223 S.W. 324

GOOSE CREEK ICE CO. et al. v. WOOD et al.

(No. 7958.)

Court of Civil Appeals of Texas. Galveston.

April 8, 1920.

Rehearing Denied June 10, 1920.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by M. T. Wood and others against the Goose Creek Ice Company and others. From an order granting a temporary injunction, defendants appeal. Reversed and rendered.

Smith & Crawford, A. M. Huffman, and J. B. Dailey, all of Beaumont, for appellants.

S. T. Deason, of Goose Creek, and Stevens & Stevens, of Houston, for appellees.

PLEASANTS, C. J.

This appeal is from an order of the district court granting a temporary injunction in a suit brought by appellees to enjoin the construction and operation by appellants of an ice factory upon land owned by appellants adjoining premises owned and occupied by appellees as their respective homes.

The plaintiffs, M. T. Wood, Charlie Diese, and C. A. Schroeder, allege in their petition, in substance, that they reside upon premises owned by them in the town of Goose Creek, Harris county, Tex., their said homes being situated on lots 3 and 4 in block 22, and lot ____, in block 29, respectively, in said town; that the lots on which plaintiffs' homes are situate lie just south of and adjoining land owned by the defendants, the Goose Creek Ice Company, a corporation, and W. T. Moon, and that said defendants are erecting and installing an ice factory on their said land, with the intention of operating said factory in the manufacture of ice for the residents of said town; that the nature of said business is such that it will require the installation of a vast amount of machinery, which will the greater portion of the time be in operation day and night; that the escape of steam and the unusual and harsh noises caused by the operation of said machinery will render the quiet and peaceable enjoyment of plaintiffs' said property impossible; that the nature of said business will require the storage on said premises at all times of chemicals, the fumes of which will endanger the life and health of plaintiffs, and such fumes, together with the noise of said machinery, and escaping of steam and waste water, will greatly endanger the life and health of plaintiffs, and will render their said property, which is worth the sum of $4,500, worthless as residence property; that plaintiffs will otherwise sustain grave and irreparable damage by reason of said ice factory erected and operated so near plaintiffs' property; and that they will be deprived of the use, quiet, and peaceable enjoyment of their said homes; and praying for an injunction restraining the erection and operation of said factory.

Defendants filed a general demurrer, general denial, and further answered specially, denying the existence of the several grounds for injunction as set out in plaintiffs' petition. The cause was heard before Hon. Charles E. Ashe, judge of the Eleventh district court of Harris county, Tex., upon an order to show cause why said injunction should not be granted, on February 10, 1920. Upon this hearing an order was made and entered by the court, granting a temporary injunction restraining defendants from the construction and operation of said ice factory.

The record discloses that the ice plant of defendants is being erected within 29 feet of the property line of plaintiffs Wood and Diese; that the residence of the plaintiff Diese is 75 feet from said ice plant, the residence of plaintiff Wood approximately 90 feet, and the residence of the plaintiff Schroeder 100 feet from said ice plant. The land on which the factory is being erected is just outside the limits of the town of Goose Creek, which contains about 5,000 inhabitants, and such ice plant is being constructed for the manufacture of ice to supply the needs of the people living in said town.

The lot on which the ice factory is situated is adjoining or near the railroad right of way between the railroad and plaintiffs' property. There is a drainage ditch between the factory and plaintiffs' property, and an improved roadway into the town of Goose Creek passes in front of the factory. There are few residences in that section of the town. The location seems to be as far from the settled residence portion of the town as any that could be obtained accessible to a public road and the railroad, and convenient for the distribution of ice to the inhabitants of the town.

Plaintiff Charles Diese testified by affidavit:

"That he was a blacksmith by trade; that he had previously operated a boiler and a stationary engine; that his experience in such line of work had taught him that if the ice plant, which is being erected by defendants in this cause, is operated by the use of secondhand machinery, the same will create a great deal of noise, and would disturb the peace and quietude of the homes of the plaintiffs."

A. L. Smith testified for the plaintiffs:

That he lives at Goose Creek, Tex.; is 38 years of age; that he is experienced in the operation of ice plants, and has visited plants at Edna, Tex., Port Lavaca, Tex., Graham, Tex., and Dallas, Tex., and has had occasion during numerous visits to said plants to observe the operation of same; that the noise, waste water, obnoxious odors, the danger of explosion from the ammonia tanks and boilers, will in his opinion render the property of plaintiffs undesirable as residence property.

R. M. Whiteside testified for plaintiffs:

That he was an engineer by trade, and is at present operating engineer for the Humble Oil Refining Company Electric Plant at Goose Creek; that he has operated a locomotive engine for a number of years, and has operated stationary engines for at least 10 years; that he has worked and been in charge of an ice plant for about 2 years, and is thoroughly familiar with the operation of same; that he has examined the machinery of the Goose Creek Ice Company plant, and finds the same to be secondhand or used machinery, and is informed that the same has been in use since the year 1906, and is of the opinion that the operation of said plant at its present location, the escape of steam, fumes from ammonia, and the liability of the explosion of same, will materially decrease the value of said property and render the use of same as residence property undesirable.

J. D. Hunnicutt, Jr., testified for the plaintiffs:

That he knows the location of the residences of plaintiffs M. T. Wood and Charlie Diese; that the same is approximately as indicated upon the plat attached to the petition, marked "Exhibit A"; that the railroad, which operates at Goose Creek, is also indicated upon the map as north of said ice plant, and affiant understands that defendant purchased the lot upon which it is erecting its plant from Thomas Wright, said lot being about 50×100 feet in dimensions, and that Mr. Wright owns all of the land, which is open land, extending from the lot now owned by said ice plant north and east of said railroad; that affiant understands that said defendant company could have purchased and can purchase from said Wright land for its plant immediately on or much nearer said railroad than the lot which they have heretofore purchased, and that, if said ice plant was erected upon a lot further north and nearer said railroad, it would naturally be farther removed from the residences of the plaintiffs, and would not give them the annoyance which they have alleged in their petition; and that they will suffer by an erection of the plant upon its present site.

In opposition to these affidavits appellants presented the following:

S. A. Spencer, one of the originators of the ice company enterprise, testified by affidavit:

"Our building will be ironclad; i. e., corrugated iron, with a Johns-Manville asbestos fireproof roof. Our machinery will be first-class and will make no more noise than usual to any machinery with moving parts. Our boilers are known as return tubular, incased in steel settings, and the fuel used will be oil, and there will be no unusual noises from this source. The boilers have been inspected by the Hartford Insurance Company and pronounced in first-class condition.

"The only chemical used in the operation will be ammonia, and no surplus of ammonia is ever carried in stock, and after being placed in the system there is no possibility of escaping fumes that would endanger life or property, as the slightest leak of this chemical is readily detected, and, as it is very expensive, naturally immediate attention is given it, but where a plant is constructed properly there is very little likelihood of any leaks. Without leaks the presence of ammonia cannot be detected.

"This company proposes to dig, and in fact has now started to dig, a four-inch deep water well for furnishing the necessary water for the operation of the plant and the manufacturing into ice. This well is to be located between our building and the county drainage ditch for the purpose of giving perfect drainage to any waste water we might have. This water will be pumped by the usual style of pumps used for this purpose, operated by steam power, and will neither be noisy nor in any way detrimental to any person or property. All exhaust steam from the water well pump is condensed back into water for the use of manufacturing the ice. This manner of pumping water, and also operating the refrigerating and ice-making machinery, is used in nearly all of the modern hotels and big office buildings; these plants being installed and operated within the buildings themselves.

"Myself and associates operate two plants in...