Shamburger v. Scheurrer

• Decision Date: 16 June 1917
• Docket Number: (No. 8793.)
• Citation: 198 S.W. 1069
• Parties: SHAMBURGER v. SCHEURRER et al.
• Court: Texas Court of Appeals

198 S.W. 1069

SHAMBURGER v. SCHEURRER et al.

(No. 8793.)

Court of Civil Appeals of Texas. Ft. Worth.

June 16, 1917.

Rehearing Denied October 13, 1917.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Suit by R. G. Scheurrer and others against C. D. Shamburger. From judgment perpetuating temporary injunction, defendant appeals. Judgment reversed, and cause remanded.

Nicholson & Fitzgerald, of Jacksboro, for appellant. T. R. Boone, of Wichita Falls, for appellees.

BUCK, J.

R. G. Scheurrer and other citizens having their homes and owning property in the Billevue addition to the city of Wichita Falls filed their petition in the Seventy-Eighth district court to enjoin C. D. Shamburger from erecting, constructing, and maintaining a lumber yard on certain described lots in the near proximity to petitioners' residences and property. On the presentation of the petition a temporary injunction having been granted, the defendant moved the court to dissolve the injunction for want of equity in the bill. Upon a hearing before the court the motion to dissolve was overruled, and the temporary injunction theretofore granted was perpetuated. Defendant has appealed.

The evidence introduced by the plaintiffs took rather a wide range, and in many instances went beyond the allegations contained in the petition, and several assignments are directed to the admission of such testimony. But plaintiffs' cause of action must rest upon the allegations contained in their petition, and the judgment rendered cannot be sustained by evidence introduced over the objections of defendant where such evidence tended to establish facts and conditions which the petition did not allege. The petition alleged that a lumber yard erected and maintained in the vicinity, which was claimed to be a residential district, and upon the lots owned by the defendant and upon which he proposed to build and maintain a lumber yard, would constitute a nuisance. Plaintiffs alleged that they were the owners of certain lots in the residence district of Wichita Falls, and had their residence and homes on said lots; that said Billevue addition was formed for the purpose of building residences and had been used as a residence district for some ten years; that the plaintiffs had certain key rate of insurance to pay on their residences and homes and buildings situated on the lots they were occupying and using, and that by the erection and maintenance of the lumber yard in question the fire hazard to said buildings would be increased and their rate of insurance enhanced; that plaintiffs had reason to believe and did believe that said defendant was going to erect on the lots owned by him, adjacent and lying next to plaintiff's homes and places of residence, unsightly, unseemly, and ugly buildings, and structures; that defendant would excavate and fill in at different portions of said lot to such an extent that he would change the flow of the surface water that naturally flows across said premises, and would cause same to accumulate on plaintiff's lots and premises; that defendant was threatening to open up a lumber yard where all kinds of inflammable material would be kept "and where all kinds of diseases would likely be brought and kept around said yard"; that said lumber yard would "be erected and maintained in such a manner as that same will be a nuisance to all of these plaintiffs and the surrounding neighborhood, and that said business so threatened by the defendant to be erected and maintained on his said lots * * * will be a nuisance to these plaintiffs and the entire community thereabout; that the establishment and maintenance of said lumber yard would work an irreparable injury to the plaintiffs."

Without reference to the testimony introduced or the answer of the defendant filed in the case, we will first consider the question of the sufficiency of the petition on its face to invoke the equitable powers of the trial court. Wood's Law of Nuisances, § 1, defines a nuisance, in its legal sense, as:

"That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage."

The test of what constitutes an actionable nuisance, one that may be enjoined or abated, is defined by the same author on page 3 of his work (second edition) in the following language:

"It is not every use of one's property which works an injury to the property of another that creates a nuisance. Injury and damage are essential elements of a nuisance, but they may both exist as the result of an act or thing, and yet the act or thing producing them not be a nuisance; for, as has been before stated, every person has a right to the reasonable enjoyment of his property, and so long as the use to which he devotes it violates no rights of another, however much damage others may sustain therefrom, his use is lawful, and it is `damnum absque injuria.'"

A "nuisance per se" or a "nuisance at law" is an act, thing, or omission, or use of property which in and of itself is a nuisance, and hence not permissible or excusable under any circumstances. A "nuisance accidens" or "a nuisance in fact" is one which becomes a nuisance by reason of circumstances and surroundings. 3 Words and Phrases, p. 661; 29 Cyc. 1153. The pursuit of a lawful business in a lawful way cannot be said to be a nuisance per se, and hence in the absence of some statutory enactment limiting the right to conduct a lumber yard within certain defined districts it cannot be said that the maintenance of a lumber yard is a nuisance per se.

Omitting the general allegation that the lumber yard as contemplated would be a nuisance, which allegation would be rather a conclusion of the pleader than a statement of a fact, the grounds for injunction presented in plaintiff's petition are: (1) That the erection and maintenance of the lumber yard would raise the rate of insurance on plaintiffs' residences and property; (2) that defendant would erect on his lots, in connection with his lumber yard, buildings that were unseemly and unsightly; (3) that he would make excavations which would cause the change of the natural flow of the surface water and cause the said water to flow on plaintiffs' premises; (4) that defendant was threatening to open up a lumber yard "where all kinds of inflammable material would be kept, and where all kinds of disease is likely to be brought and kept around said...