Stockwell v. State

• Decision Date: 29 March 1918
• Docket Number: (No. 7534.)
• Citation: 203 S.W. 109
• Parties: STOCKWELL v. STATE, by DAVIS, Commissioner of Agriculture.
• Court: Texas Court of Appeals

203 S.W. 109

STOCKWELL v. STATE, by DAVIS, Commissioner of Agriculture.

(No. 7534.)

Court of Civil Appeals of Texas. Galveston.

March 29, 1918.

Rehearing Denied April 18, 1918.

Appeal from District Court, Brazoria County; Sam'l J. Styles, Judge.

Suit by the state, by Fred W. Davis, Commissioner of Agriculture, against W. R. Stockwell. Judgment for plaintiff, and defendant appeals. Affirmed.

A. R. Rucks and Elmer P. Stockwell, both of Angleton, for appellant. Munson & Williams, of Angleton, W. A. Keeling, of Austin, and Wm. Burkhardt, of Angleton, for appellee.

PLEASANTS, C. J.

This suit was brought by the state of Texas, acting by and through Fred W. Davis, commissioner of agriculture of the state of Texas, in his official capacity, against W. R. Stockwell, to have a certain Citrus trifoliata hedge on block 13, in Graham's addition to Alvin, belonging to defendant, declared and adjudged a nuisance and ordered abated; and also for a writ of injunction restraining and prohibiting defendant, his agents and attorneys, and all other persons who may claim to be interested in said land and premises and hedge, from in any manner interfering with or opposing plaintiff, his deputies, agents, assistants, servants, and employés, in the destruction of said hedge, and that said injunction be and remain in all things perpetual. Judgment was rendered overruling defendant's plea in abatement, general and special demurrers, and sustaining plaintiff's demurrers and exceptions to defendant's answer, and granting the injunction prayed for by plaintiff.

Plaintiff's petition alleges, in substance that there is situate and growing upon premises owned by defendant and described as block 13 of Graham's addition to Alvin, Tex., a Citrus trifoliata hedge, and various Citrus trifoliata trees, all of which are badly infected with citrus canker. The remaining allegations are:

"That said disease is most contagious and destructive to the life and value of citrus fruit trees, such as lemons, grape-fruit, and oranges, is capable of being distributed and communicated to other trees and orchards, and such trees will then become infected therewith, and be ultimately ruined, destroyed, and lost, and of no value whatever to the owners thereof; that said disease is highly infectious, and is capable of being, and often is, carried about from an infected tree, and communicated to other citrus trees and orchards a great distance therefrom, by birds, animals, the wind, and by other causes, so as to cause the infection thereof, and the death, destruction, and loss of all such trees and orchards; that under the laws of the state of Texas it is the sworn duty of said Fred W. Davis, in his said official capacity, aided and assisted by his deputies, employés, servants, and assistants, to kill and destroy all such trees found to be afflicted and infected with citrus canker, and thereby suppress, destroy, and eradicate said disease, so as to protect and save the clean and unafflicted and uninfected trees, orchards, and hedges of the state of Texas, and thus protect and build up a great and valuable industry in those sections of the state where citrus fruit trees will grow and fruit, to the advantage and profit of the owners thereof and to the state at large.

"Now the plaintiff would represent that, in obedience to said law and in pursuance of his duty thereunder, this said Fred W. Davis, as aforesaid, caused the said hedge in and upon said land and premises, as well as all other such trees and plants in said community and in Brazoria county, to be fully and carefully inspected by his said deputies and assistants, who were and are learned in the art and science of citrus canker and other diseases of citrus fruit trees, and were and are fully capable of making a proper inspection thereof; and on inspection, on or about May 13, 1916, found the said hedge on said land and premises to be, and the same is now, badly infected with said citrus canker as aforesaid; and after giving all due and legal notice of the infected and diseased condition of said hedge and trees to said defendant, W. R. Stockwell, and in the manner and as required by the laws of this state, and notifying and demanding such defendant to cut down, kill, and destroy said trifoliata hedge, as required by law, and thus give protection to the other trees and orchards of citrus fruits growing in the neighborhood thereof, from which decision of said inspectors said W. R. Stockwell duly appealed to Fred W. Davis, commissioner of agriculture for the state of Texas, as provided by law; and said appeal was duly heard by said commissioner of agriculture at Alvin, in Brazoria county, Tex., on the 21st day of October, A. D. 1916, at which hearing all parties at interest appeared in person and by attorneys, and fully presented said cause to said commissioner, whereupon said commissioner took said cause under advisement, and on the 23d day of November, 1916, rendered his judgment, sustaining the judgment of his inspectors, and ordering said hedge destroyed; that, in pursuance of said judgment and order, R. W. Holbert, deputy inspector of the state department of agriculture, acting under authority and by instructions of the commissioner of agriculture, did on the 12th day of December, 1916, call upon said W. R. Stockwell, and demanded of him that he dig up, burn, and destroy said hedge; that thereupon said W. R. Stockwell refused to comply with said order of the said inspector R. W. Holbert, and the said R. W. Holbert then notified said W. R. Stockwell that he would, as inspector, acting under the authority of law, proceed to dig up, burn, and destroy said hedge, whereupon said W. R. Stockwell forbid said inspector, R. W. Holbert, to enter upon said premises and destroy said hedge, stating to said Holbert that he would not allow him to enter upon said premises and destroy said hedge; and by the acts of said defendant, the said Stockwell, the said Fred W. Davis is prevented from carrying out his duty, as required by law, in the destruction of said hedge.

"Plaintiff further shows unto the court that said hedge is of no value to defendant, and will in a few years be destroyed as a result of the disease, and in its infected and diseased condition is a nuisance to the community, is a cause and source of infection of citrus fruit trees and orchards in said community, and within a radius of several miles thereof, and that the absolute and complete destruction by being cut down, dug up, and burned, all such contaminated, infected, and diseased hedge, is the only way to eradicate, suppress, and destroy said dangerous disease, so as to save and preserve other citrus trees and other orchards therefrom.

"Plaintiff further shows unto the court that there are many other valuable citrus fruit trees and citrus fruit orchards belonging to other and various citizens of the Alvin neighborhood, which are contiguous to and in danger of and capable of being infected and afflicted with said citrus canker, and become diseased therewith, and rendered wholly valueless by infection from said hedge on said premises as aforesaid, and said trees and orchards are now daily becoming so infected and diseased and rendered valueless, and unless said defendants, their agents, employés, and attorneys, are restrained in their violent acts toward, in, and upon plaintiff's said deputies, assistants, servants, and employés, so that they may be permitted to so destroy said hedge, all of said clean, undiseased, uninfected, and healthy citrus fruit trees and orchards as aforesaid will soon be and become infected and diseased with said citrus canker, communicated from said hedge, and rendered valueless, to...