Robinson v. Dale

• Decision Date: 13 October 1910
• Citation: 131 S.W. 308
• Parties: ROBINSON et al. v. DALE et al.
• Court: Texas Court of Appeals

131 S.W. 308

ROBINSON et al. v. DALE et al.

Court of Civil Appeals of Texas.

October 13, 1910.

Rehearing Denied November 3, 1910.

Appeal from District Court, Wise County; J. W. Patterson, Judge.

Action by W. T. Dale and others against Z. T. Robinson and another. From a judgment for plaintiffs, defendants appeal. Reversed, without prejudice.

McMurray & Gettys, for appellants. R. E. Carswell and Robert Carswell, for appellees.

WILLSON, C. J.

Appellants Z. T. Robinson and Reuben Robinson owned a parcel of land fronting 191 feet on Sherman street and 226 feet on Buffalo street, and between 300 and 400 feet from the public square, in the town of Chico, on which they were preparing to construct and operate a cotton gin. Appellee Dale owned and occupied as a home for himself and his family a dwelling house situated about 72 feet from the point where appellants proposed to erect the gin, and appellees Gulghum, Carson, Siddens, and Arnn, respectively, owned and occupied as homes for themselves and their families dwelling houses situated at distances varying from 125 to 318 feet from the site chosen by appellants for the erection of said gin. A suit commenced and prosecuted by appellees to enjoin the construction and operation of the gin, on a trial before the court without a jury, resulted in a judgment in their favor against appellants perpetually enjoining the latter from "erecting or operating a gin or gin plant" upon the parcel of land. As grounds for the relief they sought and obtained, appellees alleged that the gin appellants proposed to erect would be operated by steam, and that, however carefully and skillfully it might be constructed and operated, it would, while it was being operated, make a great deal of noise, and would cause to be scattered over the neighborhood in which it was situated, and upon and into their respective dwelling houses, smoke, dust, cinders, lint cotton, trash, and other disagreeable and noxious substances, and would cause crowds of people with teams to congregate in such neighborhood day and night. They further alleged that danger to their respective premises from fire would be increased by the operation of the gin, and that the rate of insurance on their property, as a consequence, would be advanced. The effect, they alleged, of the annoyances, discomforts, and dangers so to be caused, would be to render their property uninhabitable and valueless. In their answer appellants averred that the gin they proposed to construct and operate was of a new kind, designed to obviate, and which would obviate, objections made to gins generally on account of smoke, dust, cinders, lint cotton, etc., escaping therefrom, and that its operation when constructed would not result in material injury to either appellees or their property. In support of allegations in their petition, appellees, over appellants' objection thereto on the ground that same was irrelevant and immaterial, were permitted to prove by a number of witnesses who testified that they knew nothing about the particular kind of gin appellants proposed to construct, but that in the operation of certain other specified gins and of gins generally noise was made, and that smoke, dust, and lint cotton escaped therefrom into the air and were carried to nearby premises, causing the occupants thereof annoyance and discomfort.

The construction and operation of a cotton gin near private residences is not per se a nuisance, and we think the burden was upon appellees to show that the particular kind of gin appellants proposed to construct, when constructed as appellants proposed to construct it, would cause, when operated near private residences, the annoyances appellees anticipated. Testimony that other kinds of cotton gins, constructed in a different way, when so operated, caused such annoyances, did not, we think, tend to show that the gin appellants proposed to build when operated would cause them. Hamm v. Gunn, 113 S. W. 304; Gavigan v. Refining Co., 186 Pa. 604, 40 Atl. 834; Munson v. Metz, 1 W. & W. § 245; Stephens v. Creamery Co., 9 Kan. App. 883,¹ 57 Pac. 1058. But while we think the testimony objected to was inadmissible, the action of the court in admitting it does not furnish a reason for reversing the judgment. The trial was before the...