Lee v. Bowles, 14425

• Decision Date: 01 December 1965
• Docket Number: No. 14425,14425
• Citation: 397 S.W.2d 923
• Parties: Quincy Lee, Appellant, v. Edgar B. BOWLES et al., Appellees.
• Court: Texas Court of Appeals

Page 923

397 S.W.2d 923

Quincy Lee, Appellant, v. Edgar B. BOWLES et al., Appellees.

No. 14425.

Court of Civil Appeals of Texas, San Antonio.

Dec. 1, 1965.

Rehearing Denied Dec. 29, 1965.

Foster, Lewis, Langley, Gardner & Hawn, Willis T. Taylor, San Antonio, for appellant.

Dayton G. Wiley, Peter N. Plumb, Lewin Plunkett, San Antonio, for appellees.

BARROW, Justice.

Appellant, Quincy Lee, brought this suit to permanently enjoin appellees, Edgar B. Bowles and Pan American Speedway, from establishing, operating and maintaining an automobile race track and drag strip on a tract of land owned by appellees and located near appellant's residence in a predominantly rural area, a few miles north of San Antonio.

The jury found that the contemplated use of appellees' property as a race track, alone or combined with a drag strip, would substantially interfere with the reasonable use of appellant's property as a home, by a person of ordinary sensibilities, tastes and habits. The issue of balancing of equities was severed on motion of appellant and following the jury trial, a hearing was had before the court on this issue. After this hearing, a judgment was entered wherein the court concluded from the verdict of the jury that the contemplated use of appellees' property without a drag strip would be a nuisance; however, the court found that the equities were in favor of the appellees and the community, and that the injunctive relief sought by appellant against the proposed use of appellees' property as a race track should be denied.

Judgment was entered permanently enjoining appellees from establishing, operating and maintaining a drag strip upon their property, but denying appellant injunctive relief against the proposed race track. Appellant complains of the denial of this injunctive relief and urges that the doctrine of balancing of equities is not applicable, and that the trial court abused its discretion in not enjoining both proposed activities. In the alternative, appellant urges that the judgment should be modified to limit the race track operations. Appellees do not complain of the judgment as entered, but assert by cross-assignments several prejudicial errors occuring in the trial.

Appellant's home, which was constructed in 1962 at a cost of almost $100,000, is located on a small hill near the intersection of Toepperwein Road and the access road west of I.H. 35. With the exception of the land adjoining I.H. 35, most of the land in the areas is rural countryside with only a few residences. In January, 1965, appellees purchased an 85-acre tract northwest of appellant's home and commenced construction of a race track. Appellant learned of this fact about the middle of January and promptly consulted an attorney. This suit, seeking injunctive relief only, was filed on February 10. At this time appellees had expended or become obligated for over $100,000. However, little actual construction had been accomplished before the suit was filed, and appellees did not try to cancel any of their contractual obligations after learning of appellant's objections. The planned oval track is 2800 feet from appellant's home at the closest point.

Appellant's complaints relate primarily to the noise which would be made by the racing automobiles, although there was evidence of traffic congestion on Toepperwein Road created by patrons going to and from the track, and of litter which might be dropped in the area by the patrons. There was evidence that although appellant's home was air-conditioned, his family enjoyed outdoor living and spent most of their leisure time outside the house and around their swimming pool and patio. Appellant admitted that his home was very close to I.H. 35, which was heavily traveled, and that the flight pattern for Randolph Air Force Base was close to his home. He testified that he had bought the property knowing of the sounds created by these sources, and, although they could cometimes be heard in the home, these sounds did not disturb the family.

Expert witnesses were called by appellant, who testified to experiments whereby measurements of the sounds of a Houston oval race track and a Victoria drag strip were projected to appellant's property and the noise level measured. There was testimony that the average noise level created by racers on the oval track as proposed by appellees would double the average noise level created by the highway traffic. While the airplane jets might create a louder sound at times, this sound was very infrequent and of short duration. The racing cars are not equipped with a muffler and therefore make much more noise than ordinary traffic. An expert witness testified that ordinary conversation could not be accomplished on appellant's patio during the races at a greater distance than one to four feet, and that sleep would be difficult unless appellant's house was closed. This testimony was corroborated by lay witnesses.

Appellees' track is located on the north side of Toepperwein Road, about one-half mile west of the access road of I.H. 35, and is between this access road and Lookout Road. Nacogdoches Road is a short distance west of Lookout Road. It was anticipated by appellant's witnesses that most of the traffic would go to the track via I.H. 35. A traffic engineer testified that based upon Bowles' estimate of 2000 cars arriving in the hour preceding start of the program, traffic conditions would be very congested on Toepperwein Road. Appellees contemplated selling drinks in paper cups as well as hot dogs and concern was expressed by several witnesses as to whether these papers and wrappers would litter the countryside.

As races had not been conducted at this site, most of the evidence relative to the noise and congestion was necessarily based upon the opinion of experts and experiments conducted by them. Appellees previously had operated a race track for several years at a location within the city limits. This operation was on a smaller scale and was abandoned by appellees in October, 1964, because of their inability to secure a long-term lease. Several witnesses testified concerning the sounds from this track. There was evidence from one witness called by appellant that the noise was very disturbing, and appellees produced several witnesses who had lived nearby and they testified that the sounds from the old speedway did not annoy them.

Appellant urges the doctrine of balancing the equities should not be applied in this case, as appellees did not show a public necessity for the race track, but rather a purpose of private profit. The track was planned in an unzoned area and the proposed operation was a lawful business. The case therefore involves the conflicting rights of two lawful owners. The courts have consistently recognized that the abatement of a lawful place of business is a harsh remedy. The trial court properly heard evidence on the question of balancing the equities to determine if an injunction should be granted. Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957), affirming Tex.Civ.App., 300 S.W.2d 112; Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (1950); Garland Grain Co. v. D-C Home Owners Improvement Ass'n., Tex.Civ.App., 393 S.W.2d 635, wr. ref., n. r. e.; Hill v. Villarreal, Tex.Civ.App., 383 S.W.2d 463, wr. ref. n. r. e.; Georg v. Animal Defense League, Tex.Civ.App., 231 S.W.2d 807, wr. ref. n. r. e.

Thirteen witnesses, including...