Royalty v. Strange

• Decision Date: 27 June 1918
• Docket Number: (No. 7653.)
• Citation: 204 S.W. 870
• Parties: ROYALTY et al. v. STRANGE.
• Court: Texas Court of Appeals

204 S.W. 870

ROYALTY et al. v. STRANGE.

(No. 7653.)

Court of Civil Appeals of Texas. Galveston.

June 27, 1918.

Appeal from District Court, Harris County; Wm. Masterson, Judge.

Suit by W. T. Strange against George W. Royalty and others. Decree for plaintiff, and defendants appeal. Reversed and remanded.

Cooper & Merrill, of Houston, for appellants. Atkinson & Atkinson, of Houston, for appellee.

LANE, J.

This suit was brought by appellee, W. T. Strange, against appellants, George W. Royalty, George W. Cole, and Eli W. Gaffney, to recover certain alleged damages and for a mandatory injunction requiring appellants to remove certain hogs which were being confined and fed near appellee's residence by appellants under such conditions and in such manner as to create a nuisance, and to perpetually restrain appellants from continuing such nuisance.

The question of damages is not involved in this appeal, and the prayer therefor will not be further mentioned in this opinion.

The petition for injunction was filed on the 18th day of December, 1917. The testimony with reference to the question of whether the matter complained of by appellee was or was not a nuisance which should be abated was heard on the application for temporary injunction, pending a trial on the merits, on the 9th day of February, 1918.

On the 20th day of February, 1918, upon evidence amply sufficient to support a judgment for temporary injunction to restrain appellants from continuing some of the acts complained of, the trial court rendered a decree containing the following:

"It is further adjudged and decreed by the court that said writ shall enjoin and restrain the defendants and each of them and their agents and employés from operating and conducting the hog ranch in its present location, near the residence of the plaintiff, and said writ shall also enjoin and restrain them and each of them from operating and conducting said hog ranch at any place where it will be a nuisance and where it will interfere with the comfort, enjoyment, and health of the plaintiff or his family in their home until the further orders of this court.

"This decree is based upon the evidence adduced herein on the 9th day of February, 1918."

The court by proper order suspended the effect of the decree pending this appeal.

The main and controlling complaint made of the decree rendered is that the same absolutely prohibits the operation of appellants' hog ranch within certain undefined limits, without respect to the manner or method in which the same is conducted, and without proof or evidence negativing the fact that the alleged wrong and injuries suffered by appellee could not be prevented and obviated by a relatively slight change in the location of said hog ranch, or in the method and manner of conducting the same; that it was error for the court to order the issuance of an injunction in such general terms that appellants could not readily know what they were restrained from doing.

We think appellants' complaint should be sustained. There are about 45 or 50 acres in the tract of land in the premises occupied by appellants. At the time appellee filed his petition, the hogs of appellants were confined and being fed on four acres of said land nearest to appellee's residence; at the time the testimony was heard, February 9, 1917, this four acres was being abandoned and the feeding pens had been moved back about 600 feet further from appellee's residence, and the nearest part thereof after the final removal was completed was about 1,300 feet from said residence. There was no evidence tending to show that said hog ranch could not be so conducted on some part of the land under the control of appellants without being or becoming a nuisance; but, on the contrary, there was an abundance of evidence tending to show that the same could be so conducted. Appellants cannot determine from the decree rendered whether they are enjoined from conducting their hog ranch on the four acres first used only, or on that portion of the tract of land which was being used by them on February 9th, the date of the hearing, or whether they are precluded from using any portion of their said land for that purpose.

The only part of the decree which throws any light on this question is that portion which precludes appellants from conducting their ranch at any place where it will be a nuisance and interfere with the comfort, enjoyment, and health of the plaintiff and his family. This is so vague, indefinite, and uncertain as to amount to an absolute prohibition against the conducting of a hog ranch anywhere near appellee's property, unless appellants assume the risk of being punished for a violation of the injunction.

Since appellants are manifestly unable to determine just what facts might cause the court to conclude that their hog ranch constitutes a nuisance to the appellee, the order as entered...