Jacobs & Wright v. Brigham

• Decision Date: 18 December 1920
• Docket Number: (No. 8398.)
• Citation: 227 S.W. 249
• Parties: JACOBS & WRIGHT et al. v. BRIGHAM et al.
• Court: Texas Court of Appeals

227 S.W. 249

JACOBS & WRIGHT et al. v. BRIGHAM et al.

(No. 8398.)

Court of Civil Appeals of Texas. Dallas.

December 18, 1920.

Rehearing Denied January 29, 1921.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Suit by Mrs. T. Brigham and others against Jacobs & Wright and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Thos. R. Bond, of Temee, for appellants.

H. R. Young and Wynne & Wynne, all of Kaufman, for appellees.

RAINEY, C. J.

Appellees brought this suit against appellants to enjoin them from erecting a building to be used for mules, horses, and other live stock, and feed barn on lots, alleging that said building would be used as a mule and horse barn and stable and also as a general feed stable, and, when erected, appellants' headquarters would be at this building for the buying and selling live stock and for stabling all manner of live stock, and for the storing and selling feed; that a large number of horses and mules will be kept, stabled, and fed in this barn; that the building and manner of use to which the barn is to be put and the using of this barn and stable by appellants will create a nuisance to such an extent that it will destroy the rights and benefit to appellees to use their property as their homes and will materially interfere with the enjoyment of their homes and will destroy the value of appellees' property; that the erection of said building and its use as a barn will constitute a nuisance to the health of appellees and their families by causing and creating filth, offal, excrement, and urine on the aforesaid lots in and around said barn, will also create vapors, noxious gases, and odors, and flies to an extent as will endanger the health of appellees and their families and will destroy the use of appellees' property, rendering same unfit for occupancy as homes.

Appellants answered by general exception and general denial, as follows:

"First. General exception to appellees' petition because the same was wholly insufficient.

"Second. Appellants specially excepted to all that portion of appellees' petition wherein they prayed for a writ of injunction restraining appellants from proceeding further with the erection of said building and seeking to restrain appellants from proceeding with the use and operation of said building as a mule and live stock barn, because, as shown by appellees' petition, the building did not constitute a nuisance per se, and further because it is not alleged that appellants have actually sustained damage by reason of the erection, construction or proposed operation of said barn. But to the contrary appellees allege that the barn will or may become a nuisance. That appellees' allegations are uncertain, speculative, conjectural, and remote to authorize the granting the relief prayed for.

"Third. Appellants denied each and every allegation contained in appellees' petition.

"Fourth. Appellants further answered that they owned certain lots in block No. 4 in the town of Crandall as well as other lots surrounding the same, none of which are suitable for residence purposes, but are only suitable for business purposes. As owners of these lots these appellants have erected a building on two of the lots with the intention of using and occupying said building as a grain and feed store, selling hay and grain to the public, as well as storing such grain and hay as appellants may from time to time purchase for sale or storage. That for a period of about two months in the year, appellants generally buy and sell to the farmers in and around Crandall two or three carloads of mules, consisting of about 60 head of mules bought and sold by appellants, but at no time during said two or three months would appellants have on hand more than 20 or 30 head of mules for sale. That it is the intention of appellants, in addition to other uses said building will be put to, they would expect to house their mules in said building during the two or three months of the year, so as to protect their stock from the weather until sales could be made, and the remaining portions of each year, for a period of about nine months, there would be no live stock of any kind kept on said premises. That in the prosecution of appellants' business, they will keep their premises free from filth, stench, and other objectional causes to appellees or their property. That the manner of keeping said premises will in no manner constitute a nuisance to appellees or their property.

"That appellees' property is surrounded by gins, railroads, outhouses, business houses, and other trades or avocations such as are usual and customary in a small town like Crandall, and the locality is in no manner suitable for residence property and is in a locality where there are but few residences located. That appellants' business is a public necessity to the agricultural interests of the country...