Lewis v. Berney

• Decision Date: 06 April 1921
• Docket Number: (No. 6539.)
• Parties: LEWIS v. BERNEY et al.
• Court: Texas Court of Appeals

Page 246

230 S.W. 246

LEWIS v. BERNEY et al.

(No. 6539.)

Court of Civil Appeals of Texas. San Antonio.

April 6, 1921.

Rehearing Denied April 30, 1921.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by C. W. Berney and others against Hugh H. Lewis. Judgment for plaintiffs, and defendant appeals. Affirmed.

Wray & Mayer, of Fort Worth, for appellant.

Flournoy & Smith, of Fort Worth, for appellees.

SMITH, J.

This is an appeal from a permanent injunction granted at the instance of C. W. Berney and others restraining Hugh H. Lewis from constructing and operating a public automobile storage garage, filling station, and repair shop at the corner of Sixth avenue and Pruitt street in the city of Fort Worth. The matter was tried before the court without a jury. No findings of fact or conclusions of law were requested of or filed by the court, but the judgment appealed from embraced the following:

"The court, having fully heard the testimony and the argument of counsel, is of the opinion that the business and operations of the defendant sought to be enjoined by plaintiffs herein will unlawfully annoy, harass, offend, and injure the plaintiffs in their homes as adjacent and near the said proposed business and operations of defendant, and that said business and operations will be a nuisance to plaintiffs residing in their said homes and should be enjoined."

The first assignment of error complains of the action of the lower court in overruling the general demurrer urged by Lewis, defendant below and appellant here. Appellees in the court below alleged that Lewis had bought a 75×140-foot lot at the location mentioned and was preparing to construct and operate a public warehouse and storage garage, filling station, and repair shop covering the entire lot; that the lot was located in the heart of a purely residential section of the city, and in the immediate neighborhood of the homes of appellees, and particularly within a few feet of the home of one of the appellees; that the outfit was to be operated both day and night, including Sundays, for storing, repairing, and filling automobiles and motor-driven vehicles using gasoline and kerosene; and that the storage capacity of the plant was from 80 to 90 cars. After further alleging that Lewis had begun to move material onto the lot for such construction, the petition proceeded:

"Plaintiffs allege further that the aforesaid uses of such building will produce great and continued noises necessarily connected with the operation and moving of considerable numbers of motor-driven vehicles as aforesaid and the carrying on of the business of repairs for same, during all hours of the day and night and on Sundays, and that said uses will produce also obnoxious fumes and odors, and noxious vapors and smoke from the fuel and materials employed and consumed in the moving of the said cars and repairs of same and the operations of the business in said building, and will greatly increase the fire risk to houses adjacent thereto; that the said uses of said building will necessarily produce an accumulation and congestion of cars on the streets on which said building will abut and along the sidewalk curbs adjacent to said building and for a considerable distance beyond said building, both on Pruitt street and Sixth avenue; that Sixth avenue is the main and principal thoroughfare for vehicles traveling from Pennsylvania avenue south for the whole district extending west from South Main street to the river bluff on the east, and being a narrow street, only 50 feet, including the sidewalks, is now, particularly in the afternoon when persons are accustomed to drive for pleasure, loaded with vehicle traffic to its full capacity; Pruitt street, lying immediately south of said premises, is only 60 feet wide and is also much used therefor; that all of the consequences and conditions hereinabove set out will be continuous from and after the time when the said building is occupied and employed for the uses aforesaid.

"Plaintiffs allege that they are all owners of and occupy homesteads for dwelling purposes in the immediate vicinity of the defendant's said premises; that the said locality and the district for many blocks around has been for 30 years or more a desirable and favored residence section of the city of Fort Worth, and that plaintiffs selected the same and acquired their said homes there for that reason; that there is no factory, shop,...