North v. Atlas Lime Co.

• Citation: 2 S.W.2d 956
• Decision Date: 09 February 1928
• Docket Number: (No. 2143.)
• Parties: NORTH et al. v. ATLAS LIME CO. et al.
• Court: Court of Appeals of Texas

2 S.W.2d 956

NORTH et al. v. ATLAS LIME CO. et al.

(No. 2143.)

Court of Civil Appeals of Texas. El Paso.

February 9, 1928.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit by the Atlas Lime Company and others against C. L. North and others for an injunction. From an order granting a temporary injunction, defendants appeal. Affirmed.

Goggin, Hunter & Brown, of El Paso, for appellants.

J. U. Sweeney and J. E. Quaid, both of El Paso, for appellees.

HIGGINS, J.

August 25, 1926, the owners of the Fisher survey leased same to Dudley & Orr for five years with authority to operate a rock quarry upon the premises. September 10, 1926, Dudley & Orr subleased the same to the El Paso Building Material Company, who have since operated said quarry. August 22, 1927, the owners of the Styles survey leased to the Atlas Lime Company 14.73 acres out of said survey north of and adjoining the Fisher survey, with authority to operate a rock quarry upon the premises.

The ingress to and egress from the quarry upon the Styles survey is a road down an arroyo on the side of Mt. Franklin. The road runs for about 200 feet across a corner of the Fisher survey.

The two companies are competitors in business. After the Atlas Lime Company began the operation of its quarry and using the road mentioned, the El Paso Building Material Company, by its president, C. L. North, obstructed the road by building a fence across it from one side of the arroyo to the other and placing in the road a small sheet iron shanty to be occupied by a watchman placed there to prevent the fence being torn down. It is apparent the fence was not placed for inclosure purposes, but merely to prevent the Atlas Lime Company's use of the road.

This suit was brought by the owners of the Styles survey and the Atlas Lime Company against the El Paso Building Material Company, its president, North, Dudley & Orr, and the owners of the Fisher survey to enjoin the obstruction of the road, the plaintiffs asserting, among other grounds of user, a prescriptive right to the use of the road across the Fisher survey.

Notice to show cause was issued to North and El Paso Building Material Company, who answered, and, upon hearing, a temporary injunction was issued restraining North and the El Paso Building Material Company from obstructing the road and from interfering with plaintiffs in the removal of the fence and house upon the same. North and said company appeal.

The evidence shows that the use of the road by the Atlas Company does not in any degree inconvenience or damage the El Paso Company in the latter's use of the Fisher survey; that such road is the only one to and from the quarry upon the Styles survey; that the quarry furnishes the rock used by the Atlas Company in making lime at its plant, and if use of the road be denied said company will be obliged to discontinue making lime, and its business destroyed; that while another road might be built and used by said company, if a right of way therefor can be obtained, nevertheless it will take some time to construct same and be expensive to build.

In Jeff Chaison Townsite Co. v. McFaddin, Wiess & Kyle Land Co., 56 Tex. Civ. App. 611, 121 S. W. 716, Justice Reese, in sustaining with some modification a temporary injunction, said:

"We quote from Joyce on Injunctions (vol. 1, § 25): `Where the rights of the parties are at all doubtful, the court applied to for an injunction should look at the balance of convenience, and act upon the consideration of the comparative inconvenience which may arise from granting or withholding the injunction. In this connection it is said in a recent case: "In a doubtful case, where the...