Patton v. Carter

• Citation: 197 S.W.2d 168
• Decision Date: 10 October 1946
• Docket Number: No. 4398.,4398.
• Parties: PATTON v. CARTER et al.
• Court: Court of Appeals of Texas

197 S.W.2d 168

PATTON v. CARTER et al.

No. 4398.

Court of Civil Appeals of Texas. Beaumont.

October 10, 1946.

Rehearing Denied October 30, 1946.

Appeal from District Court, Nacogdoches County; H. T. Brown, Judge.

Suit by R. A. Carter, and others, against Douglass Patton to enjoin defendant from erecting, maintaining and operating, a livestock auction barn and stock pens adjacent to plaintiffs' homes. From judgment for plaintiffs, defendant appeals.

Judgment affirmed.

H. L. Edwards and J. J. Greve, both of Nacogdoches, for appellant.

McAlister & Tucker, of Nacogdoches, for appellees.

MURRAY, Justice.

R. A. Carter, R. H. Matlock, and J. W. Satterwhite brought suit against Douglass Patton in the district court of Nacogdoches County, seeking to enjoin him from erecting, maintaining, and operating an auction barn and stock pens adjacent to their homes near Nacogdoches. They alleged in substance that Mr. Patton proposed to erect near their homes an auction barn and thereafter to maintain and operate it as such, and that the consequent odors, noises, and commotion therefrom would disturb the comfort and enjoyment of their homes and premises and would greatly depreciate the value of their premises. The case was tried to a jury and upon a verdict favorable to the applicants for injunctive relief, the court rendered judgment for them, permanently enjoining Patton from constructing, operating and maintaining an auction barn, stock pens, cow lots and hog pens on his premises. From such judgment Patton has perfected his appeal to this court.

By his first point the appellant says the evidence was insufficient to show that the proposed auction barn and pens when built would be a nuisance and the trial court therefore erred in overruling his motion for instructed verdict. Appellant argues that the evidence produced by appellees did not show that the proposed barn would of a certainty be a nuisance, but merely showed that appellees feared that it might become such. The appellant himself was first called to the witness stand by appellees, and he testified that he was preparing to build an auction barn and stock pens and operate them as a place for weekly sales by auction of livestock; that such stock would be brought there in large numbers; that he would sell cattle, hogs, sheep, goats, horses and mules; that the animals, or some of them, would be on the premises two or three days of each week; that there would be droppings, odors, noises, flies and insects present, and also noises of the crowds of people attending the sales and moving the stock; all the appellees testified that their homes were nearby, and that the proposed operation of his auction barn, as described by appellant, would disturb the normal sensibilities of people in those homes. We think the evidence was sufficient to warrant submission of the case to the jury. It is well settled that a threatened nuisance will be enjoined. Jacobs & Wright v. Brigham, Tex.Civ.App., 227 S.W. 249; Landwer v. Fuller, Tex.Civ.App., 187 S.W.2d 670.

By his second point, appellant says the trial court erred in permitting the appellees as witnesses to testify that the operation of the auction barn "would materially interfere with persons of normal sensibilities situated as the appellees, etc." After Mr. Patton had testified that certain things would occur in the operation of the proposed auction barn, each witness was asked whether such things would disturb people of normal sensibilities in the enjoyment and comfort of their homes and they testified that in their opinion such things would have that result. We do not believe the matters inquired about were such as to require qualification of a witness as an expert before he could give his opinion thereon. We are not aware of the existence of any trade or learned profession, the members of which have become so erudite that they are better qualified...