Iford v. Nickel
| Decision Date | 11 January 1928 |
| Docket Number | (No. 7884.) |
| Citation | 1 S.W.2d 751 |
| Parties | IFORD et al. v. NICKEL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.
Suit for injunction by D. W. Iford and others against Dean O. Nickel. From a judgment of dismissal, plaintiffs appeal. Affirmed.
Cameron & Epperson, of Edinburg, for appellants.
Strickland & Ewers and J. Q. Henry, all of Mission, for appellee.
This is an application for an injunction filed by D. W. Iford, R. C. Waters, Joe Daney, Harold Lehman, F. E. Smith, T. O. Garrett, and N. V. Sidener, property owners in Weslaco, Hidalgo county, to prevent the erection of certain structures by Dean O. Nickel, appellee, to be used by him as an "automobile tourist camp," in a residence portion of the town, where appellants reside and have their homes. It was alleged that the appellee was about to erect a "number of unsightly, cheaply constructed, small shacks, buildings, or shelters in which it is purported by him to house such tourists and other travelers who should happen to see fit to stop in such tourist camp; that, further, in connection with said tourist camp, plaintiffs are informed, and upon information and belief charge, that defendant is about to erect certain outhouses, kitchens, and garbage receptacles for the use of those who should happen to stop and remain at said camp." It was also alleged that the camp was about to be located in "the most desirable and exclusive residence portions of the said city of Weslaco"; that the erection of the structures would materially decrease the value of the property of appellants, and increase hazard from fire; that the sight of them would give an unfavorable opinion of the place to those passing through, into, or out of Weslaco, and that the "use of said buildings on said lot 5, as a tourist camp, will create filth and obnoxious odors, and will be calculated to, and will of necessity, breed innumerable flies, mosquitoes, and other disease spreading and obnoxious insects and vermin, and will be calculated to cause and spread disease." It was also alleged that there would "be the making of loud and unseemly noises by those who occupy the said camp houses." The court sustained a general demurrer to the petition.
There is an allegation in the petition that considerable numbers of tourists or others will visit the camp, both day and night, and that they would produce noises that would necessarily disturb the peace of adjacent owners of property, and the whole petition is based upon an improper use of the premises until the prayer is reached. If a camp can be conducted in such a manner as not to produce such noises as would destroy the rest and comfort of adjoining property owners, or if a camp can be conducted so as not to "create filth and obnoxious odors," and so as not to "breed innumerable flies, mosquitoes" and other insects, then the camp is not a nuisance per se which can be abated without evidence as to its use. Undoubtedly the citizen has the right to the use of his property so long as that use does not impair or destroy the use of others in their property. It cannot be held as a matter of law that a camp for the use of travelers by automobile is a nuisance. The use of land for the purpose of a camp in a city or town is a lawful use, and may be exercised without thereby creating a nuisance. The lawful use of property cannot be enjoined. The petition is based upon anticipation that appellee will not use his property and conduct it in a lawful and proper manner. It proceeds upon the assumption that the lawful business of a tourist automobile camp cannot or will not be conducted in a lawful manner. The allegations do not show that it cannot be so conducted as not to emit noxious or disagreeable odors, or so as not to create extraordinary and disturbing noises, or so as not to create a breeding place for insects. In other words, it does not show that the things prophesied are the necessary adjuncts of the business, without which it cannot be conducted. The injunction is aimed at a lawful business, and, unless it cannot be conducted so as not to invade the rights of property owners in the vicinity, its erection cannot be restrained upon the assumption that it will be used in such a manner as to create a nuisance.
In this case it was alleged that the tourist camp fronts on a public highway, "being the main public road through the city of Weslaco, and which extends through the entire county of Hidalgo," and it is the reasonable inference that automobiles are constantly passing along this highway night and day, and constantly making the same noises that automobiles would make in entering and leaving the camp. We refer to this as showing that the noise made by automobiles on the highway could not, and would not, be added to by the automobiles at the camp. The matter of locality has...
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...Cases from Arkansas, Texas and Michigan are cited in support of the text. Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46; Iford v. Nickel, Tex.Civ.App., 1 S.W.2d 751; V. Shevnock, 309 Mich. 179, 14 N.W.2d 827; Richards v. City of Pontiac, 305 Mich. 666, 9 N.W.2d 885. We, therefore, hold that a......
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