Spence v. Fenchler

Decision Date08 December 1915
Docket Number(No. 2559.)
Citation180 S.W. 597
PartiesSPENCE et al. v. FENCHLER et al.
CourtTexas Supreme Court

Action by Frank A. Spence and others against W. H. Fenchler and another. An order denying plaintiffs a temporary injunction was affirmed by the Court of Civil Appeals (151 S. W. 1094), and plaintiffs bring error. Reversed and remanded.

Gunther R. Lessing, of El Paso, for plaintiffs in error. Turney & Burges, Beall, Kemp & Parker, T. A. Falvey, and J. U. Sweeney, all of El Paso, for defendants in error.

HAWKINS, J.

Plaintiffs in error, hereinafter called plaintiffs, brought suit in the district court of El Paso county, Forty-First judicial district, against defendants in error, hereinafter called defendants, seeking a temporary, and also a permanent, injunction to restrain the maintenance of certain alleged bawdyhouses and disorderly houses in the city of El Paso, standing near real property of plaintiffs, respectively, alleged to have been rented by defendant Fenchler to his codefendant, Bess Montell, and others, respectively, constituting nuisances resulting in damages to property of plaintiffs and of others similarly situated, and to enjoin the sale and keeping for sale of intoxicating liquors at a certain one of said houses without a license therefor.

Plaintiffs' petition alleges, in substance, among other things:

That each of the plaintiffs owns and is in possession of certain described real estate in the city of El Paso, Tex.; that the defendant Fenchler owns and, through his tenants, agents, and lessees, is in possession of certain other described real properties in said city, including a certain building known as "the Palace," at No. 214 Broadway street; that defendant Fenchler, by himself, his agent or lessee, sublets or rents said building at 214 Broadway to his codefendant, Bess Montell, who is now in possession thereof and interested therein as tenant or lessee; "that the said Bess Montell is knowingly keeping and running a bawdy and disorderly house on said property and premises owned by the said Wm. H. Fenchler at No. 214 Broadway street, and is knowingly permitting, aiding, and abetting and interested in the same and the houses, buildings, and structures thereon situated, and the said defendants have been informed, are advised, and know that said premises, to wit, said Palace, No. 214 Broadway street, are being kept, used, and occupied as such bawdy and disorderly house, or houses;" that among the said properties of the defendant Fenchler is one in block 151 of Campbell's addition, and that said Fenchler "is also permitting and aiding and abetting in keeping nuisances and illegal houses and places on the said last-described property, either through his agents, sublessees, or tenants, as hereinafter stated"; "that the balance of said property hereinafter described owned by said William H. Fenchler, and the structures or houses located on the said property [describing it], and the other property hereinabove described which is not being occupied, and is not in the possession of said Bess Montell, is being occupied, leased, and used by certain women, whose names are unknown to these plaintiffs, as bawdy and disorderly houses;" "that at the time said William H. Fenchler purchased the said property, and at the time he subleased and entered into contracts with the said Bess Montell, and the other parties hereinbefore referred to, he and the said Bess Montell, and the other people occupying said property, knew that the said property was being used, has been used in the past, and would in future be used for such illegal purposes. These plaintiffs say that, although the said defendants have often been notified that their said property is being used, rented, and kept for such illegal purposes, they have nevertheless failed and refused to prevent the said keeping, renting, using and occupation of such property, premises, houses, and structures so owned by them, or in their possession, for such purposes. These plaintiffs further allege that the said premises, property, houses, and buildings of the said defendants are being actually and habitually used for the purposes of keeping bawdy and disorderly house, or houses, and the said defendants, and each of them, are aiding and abetting, and are interested in the same, and the maintenance and keeping thereof. Plaintiffs further aver that prostitutes are permitted to resort and reside in and on the said premises for the purpose of plying their vocation, and that the said lewd women and women of bad reputation for chastity are employed and permitted to display and conduct themselves in a lewd, lascivious, and indecent manner on the said premises; that spirituous, vinous, and malt liquors are kept for sale on the said property, at 214 Broadway street without the said defendant, or any one holding under them, having obtained a license."

The petition also alleges:

"That the keeping and maintaining of said bawdy and disorderly house, or houses, upon said premises of the defendants or any of them is a nuisance, and seriously damages and depreciates the rental value and market value of plaintiffs' property hereinbefore described, which said property is situated in close proximity and near to the said property so owned by said defendants, as hereinbefore stated; that said nuisances make the dwelling houses, buildings, edifices, and tenements of these plaintiffs, and others similarly situated, unfitted for the occupancy of respectable people, and destroy the moral of these and of the neighborhood of the city, and the said immoral and illegal places drive out and turn away the respectable citizens from that vicinity, and dedicate the same to immoral and criminal purposes, and greatly reduce and decrease, and will continue to so greatly reduce and decrease, the rental value and market value thereof, unless the said nuisance is abated."

The petition also alleges:

That said bawdy and disorderly houses are located in close proximity to the principal and most frequented business section of said city and of various described buildings, and that, "in utter disregard of the laws of the state of Texas providing against the maintenance of such nuisances, the said defendants are maintaining, permitting to be maintained, aiding and abetting the maintenance on their said premises said bawdy and disorderly house, or houses, although they well knew the existence of said laws," and that "the said illegal and immoral houses are injurious to the public health, public peace, public safety, and public morals, and are in other ways, as aforesaid, irreparably damaging the property of these plaintiffs, as well as the property of other citizens and taxpayers in the city of El Paso, Tex."

The petition further alleges:

"That the said defendants, and each of them, by the maintenance, permission to maintain, renting, aiding, and abetting in maintenance of such bawdy ad disorderly house, or houses, and by wrongfully and unlawfully setting apart and dedicating the same for such unlawful and wrongful purposes, are guilty of maintaining public, as well as private nuisances, and should be enjoined and restrained from maintaining, keeping, aiding, and abetting in so keeping the same," and that the location of said disorderly and bawdy houses as aforesaid "renders the property of these plaintiffs, as well as the property of other citizens and taxpayers, unfit for occupation by respectable families as tenants, and prevent these plaintiffs, and others similarly situated, from improving their property and building thereon because of the impossibility of securing good tenants; that said bawdy and disorderly house, or houses, prevent these plaintiffs, and others similarly situated, from maintaining and running business houses, stores, and rooming houses for decent and first-class trade and patronage, and hamper them in securing decent and respectable girls, men, and women to enter their employ and work for them in such stores, business houses, and rooming houses, and prevent the wives and daughters of the citizens of El Paso from visiting their stores and business houses owned by plaintiffs, and other citizens of El Paso, Tex., similarly situated to the great and irreparable injury and damage of these plaintiffs and others similarly situated."

The petition contains other allegations of present and prospective depreciation in value of and damage to said property of plaintiffs and of others similarly situated, and closes with prayer:

"That a temporary writ of injunction be granted by this court restraining and prohibiting the defendants, their heirs and assigns, and each of them, and any and all persons holding under them, from further maintaining, using, aiding and abetting, renting, or occupying their said property, and the buildings or building houses, tenement or tenements thereon situated for such illegal, wrongful, and immoral purposes, and from permitting said prostitutes and women of bad reputation for chastity to display and conduct themselves thereupon in an indecent manner; that the said defendants, their heirs and assigns, their tenants and agents, be restrained from further selling and keeping for sale spirituous, vinous, and malt liquors on their said premises, and that they be restrained from further maintaining and permitting to be maintained on their said property said nuisances, and that the said defendants and each of them be duly cited to answer herein, and that upon a hearing hereof said injunction be made permanent and perpetual, and that these plaintiffs have judgment for all costs of suit, and for such other and further relief, general and special, in equity and in law, as to the court may seem fit and proper."

Defendants' amended answer embraced the following pleas: (1) General demurrer; (2) special exception that plaintiffs had not alleged that they had been "personally...

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