Oliver v. Forney Cotton Oil & Ginning Co.

• Decision Date: 08 January 1921
• Docket Number: (No. 8418.)
• Citation: 226 S.W. 1094
• Parties: OLIVER et al. v. FORNEY COTTON OIL & GINNING CO.
• Court: Texas Court of Appeals

226 S.W. 1094

OLIVER et al. v. FORNEY COTTON OIL & GINNING CO.

(No. 8418.)

Court of Civil Appeals of Texas. Dallas.

January 8, 1921.

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

Suit by Frank Oliver and others against the Forney Cotton Oil & Ginning Company. Judgment for defendant, and plaintiffs bring error. Affirmed.

Wynne & Wynne and H. R. Young, all of Kaufman, for plaintiffs in error.

Brooks, Worsham & Rollins, of Dallas, for defendant in error.

HAMILTON, J.

This is a suit to enjoin a private nuisance brought by plaintiffs in error against defendant in error. The case was tried below before the court and a jury, and upon certain findings made by the jury in response to questions submitted by the judge judgment was entered for the defendant in error refusing to grant the injunction.

The plaintiffs in error owned lots in the town of Crandall and occupied them as homes. These various lots used as homes by the several plaintiffs in error were situated distances varying from 50 feet to 200 yards from the buildings in which the gin and its appurtenances were operated.

The gin was erected on a lot containing between two acres and three acres of land. Two other gins were located in the same vicinity. They were in a section of the town which seems to be properly designated as the ginning section, because of the fact that for many years—more than 20 years—gins had been operated in that immediate and particular vicinity. All the Crandall gins appear to be located in this area. Formerly for many years a gin had been located and operated by the defendant in error and its predecessors in title and operation on a different portion of the gin lot farther removed from the properties of the plaintiffs in error. Plaintiffs in error acquired their homes in close proximity to the tract of land upon which the gin is situated with knowledge that the block of less than three acres of land was being devoted to use of persons exclusively operating a gin upon it, to which use, as above stated, it had been devoted for a number of years, except that for a period of time a portion of it was set apart and used for a cotton yard.

At the close of the ginning season in 1917 defendant in error determined and announced that it would dismantle an old and dilapidated gin located, as aforesaid, upon a portion of the lot not so near to the homes of plaintiffs in error and construct a new, modern one. In the course of time this plan was put into execution and the gin was located, construction begun, and nearly completed without protest or complaint from any of the plaintiffs in error. The first complaint brought to the knowledge of defendant in error was in the form of the petition filed in this cause on the 6th day of June, 1918.

A temporary writ of injunction was issued in behalf of complainants, but upon motion of the defendant in error it was dissolved on July 27, 1918. Thereafter the gin was operated during the ginning season of 1918.

It was alleged that the operation of the gin was attended by annoying noises and vibrations, and that it emitted dust, dirt, and lint which came upon plaintiffs in error's premises in such quantities as to render impossible the occupancy of them in health and comfort, and also that large numbers of draft animals used in hauling to and from the gin stood upon the premises during the ginning season and deposited thereon filth from which noxious odors and gases arose and were borne in the air to the homes of plaintiffs in error, impairing their comfort and endangering their health, and further that in this filth flies were propagated and spread to the homes of plaintiffs in error and threatened their health and the health of all their families.

The gin against which these allegations were directed appears to have been constructed upon a concrete foundation to prevent vibration and equipped with the best known of devices to prevent dust, dirt, etc., from escaping. The machinery was of the most modern type and was installed by skilled and experienced men. The gin is located in an agricultural district devoted to the production of cotton, and was, when constructed, a public necessity according to the facts established below.

By their first and second specifications of error the plaintiffs in error charge that the judgment, according to the jury's answers of special issues, ought to have been for them instead of for defendant in error. Under these assignments they submit the following proposition:

"In a suit for injunction to restrain the operation of a nuisance, where the jury finds that its operation causes a substantial damage to plaintiffs' property and materially affects the plaintiffs in the enjoyment of their homes, and that the nuisance cannot be operated in a manner to prevent substantial injury to plaintiffs' property, it is error for the court to refuse to enter judgment restraining the operation of the nuisance."

This may be said to be a sound statement of law, abstractly and generally speaking, but we do not think it can be applied in this case to work an overturning of the judgment. While the jury did find that the operation of the gin materially interfered with the plaintiffs in the use and enjoyment of their homes, and also found that no equipment could be provided to eliminate the injury thus produced, and while the facts abundantly supported the finding, yet the jury also found all of the following facts: First, that the site of the gin is within the area in Crandall set aside to the location of gins and similar industries; second, that when plantiffs acquired their respective properties, they knew, or by the use of reasonable diligence could have known, that a gin would be erected and operated where this one is; third, that defendant acted reasonably in erecting, maintaining, and operating the gin in its location; fourth, that plaintiffs' properties were not impaired in market value; fifth, that their respective properties had not been destroyed for the purposes of homes for themselves and their families; sixth, that the operation of the gin in its location did not jeopardize or seriously threaten the health of plaintiffs or that of their families; seventh, that plaintiffs could be reasonably compensated in money for the damage they will sustain; eighth, that although plaintiffs knew of the purpose to construct the gin and knew it was being constructed, yet they did not complain until it was practically completed, and that, if they had complained to defendant in error, the gin would not have been located where it is. The jury found also that the defendant acquired the property eight years before suit for gin purposes, and purposes incidental thereto, and since then had used it for no other purpose. The jury also found the plant to be worth $20,000, and that, if dismantled and removed, it would not be worth more than $12,000.

We are not able to enunciate a controlling rule to be applied to other cases, nor do we think any rule has ever been stated to which reference can be made for the governance of every specific case involving the question of the right to enjoin a nuisance per accidens, because each of such cases must be determined, in the exercise of discretion, upon the peculiar facts involved. But it is apparent that in cases of the nature of this, involving, as it does, the conflicting rights of the parties in the respective uses of their properties, the right to an injunction is not absolute, but rests in the sound discretion of the trial court, and, this being so, it was proper for the jury to ascertain and find the foregoing facts, and, such facts having been established by the jury's findings under evidence sufficiently supporting the findings, they are enough to sustain the judgment.

That a person is entitled to enjoy his home free from material discomfort, annoyance, and injury occasioned by the unlawful use by another of his property cannot be controverted. This is a general and universal rule. But this rule cannot be invoked to prevent the reasonable, careful, and justly warranted use of property in a particular way because there is necessarily incident to that use discomfort and annoyance to home owners under all the circumstances appearing in the instant case. The material testimony in many essentials is about without conflict. The testimony of the plaintiffs in error clearly establishes the fact that occupants of their homes are subjected to annoyance and discomfort from the operation of the gin. And this testimony is hardly at all disputed. On the other hand, the evidence in behalf of defendant in error is plentifully sufficient to warrant the above stated findings of the jury in favor of defendants in error.

The evidence established a conflict of rights and interests to be adjusted by the practical judgment and sound discretion of the court and jury below. "As said in some of the authorities, there must, in such inquiries where rights and interests seem to conflict, be a balancing of them." Railway Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 299, 86 Am. St. Rep. 835.

We believe the facts of this case are nearly enough similar to the facts of the case of Gilbert v. Showerman, 23 Mich. 450, to warrant supporting the judgment upon the authority of that case, in which the opinion was written by Mr....