Storey v. Central Hide & Rendering Co.

• Court: Texas Supreme Court
• Writing for the Court: GRIFFIN
• Citation: Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615 (Tex. 1950)
• Decision Date: 25 January 1950
• Docket Number: No. A-2417,A-2417
• Parties: STOREY et al. v. CENTRAL HIDE & RENDERING CO.

Page 615

226 S.W.2d 615

148 Tex. 509

STOREY et al. v. CENTRAL HIDE & RENDERING CO.

No. A-2417.

Supreme Court of Texas.

Jan. 25, 1950.

Rehearing Denied Feb. 2, 1950.

J. Byron Saunders, Tyler, Pollard, Lawrence & Reeves, Tyler, W. Dewey Lawrence, Tyler, for petitioners.

Lasseter, Spruiell, Lowry, Potter & Lasater, Tyler, McDonald & Anderson, Wichita Falls, Geo. W. Anderson, Wichita Falls, for respondent.

GRIFFIN, Justice.

This is a case for an injunction brought by petitioners against respondent seeking to perpetually enjoin the respondent from operating a rendition plant in the vicinity of the petitioners' lands near Tyler, Texas. Upon a trial before a jury and the answers of the jury to special issues favorable to petitioners, the trial court entered judgment perpetually enjoining respondent from operating such plant. Upon appeal to the Court of Civil Appeals at Texarkana, this judgment was reversed, the injunction dissolved and the cause remanded to the trial court for further proceedings in accordance with the opinion. The Court of Civil Appeals held that petitioners were not entitled to perpetually enjoin the operation of the plant, but were relegated to their suits for damages suffered by virtue of such operation. The opinion of the Court of Civil Appeals gives a full and complete statement of the case as presented. Suffice it to say that the findings of the jury have evidence to support them. See Central Hide & Rendering Co. v. Storey et al., Tex.Civ.App., 223 S.W.2d 81. Petitioners' application for writ of error was granted upon the points complaining of such holding by the Court of Civil Appeals. Additional facts will be stated by us as deemed necessary to an understanding of our decision.

The only question to be decided is whether this nuisance should be abated, or should petitioners be relegated to suits for damages for the injuries the record shows they suffer by virtue of respondent's operation of the rendering plant.

The operation of the rendering plant is a lawful business and it does not constitute a nuisance per se, and petitioners do not contend that it is a nuisance per se. 'On the other hand a lawful business may become a nuisance in fact when it is operated in such a place or manner as seriously to interfere with the enjoyment of life and property.' 31 Tex.Jur. p. 433, Nuisance, Sec. 21, and authorities therein cited; Landwer v. Fuller, Tex.Civ.App., 187 S.W.2d 670, writ refused want of merit; King v. Columbian Carbon Co., 5 Cir., 1946, 152 F.2d 636.

The area where this plant was originally located in 1944 is one that has been developing as an industrial area for a period of time antedating the establishment of this plant. The record shows many industries and of varied kind and character have located in this area within the past five to ten years. The evidence shows that in order to properly operate a plant of the kind and character of the plant involved, it is necessary to have available three phase high-power electrical lines, abundant water and an adequate gas supply. At the time the plant was established in 1944, the present location was the only place where all three requisites were found.

The evidence showed there was no location to which the plant could be moved that afforded these facilities which was not in a section where people resided who might object to the location. It would entail a loss of $30,000 to move the plant. The permanent injunction puts respondent out of business and destroys their property. The operation of the plant does not destroy any of the petitioners' homes. One has built a new home in this same neighborhood and 150 yards nearer the plant than the home in which he was living at the time the plant was established. Some land in the immediate vicinity was purchased at a price of $1000 per acre about the time the plant was built, but since had been sold for $2500 per acre for use by a bearing factory which was built there. When the plant was built there was in this vicinity a slaughter house, a horse and mule barn, a dairy, a hog pen in which many hogs were raised and fattened, a cat and dog hospital, a junk yard, and other commercial establishments. The testimony of all petitioners and their witnesses was that the offensive odors and flies were not always present, but generally only when the wind was in the right direction; in other words, the inconvenience and obnoxious odors did not affect the homes all the time, but only occasionally. Some of the petitioners' witnesses had not been bothered for as much as three weeks to thirty days prior to the present trial. The evidence on the part of the respondent's witnesses (which included three employees of the State Department of Health, Sanitation Division) was to the effect that the respondent had a plant of the most modern and efficient design and that respondent was carrying out the latest and best recognized scientific practices to keep down odors and flies. All these practices were carried out by respondent in order to protect petitioners from the injuries which they complained of. Respondent had spent much money in modernizing its plant, and had satisfied the State Department of Health with regard to the sanitary operation of its plant. The evidence showed that there was a need for the rendering plant to conserve what would otherwise be wasted; and to afford an efficient and economical means of disposing of garbage, dead animals and residue from the packing and slaughter houses in Smith County, Texas. It was also shown that this was the only rendering plant in the county and served the needs of some 75,000 people to promote better sanitary conditions for all of Smith County. The exhibits of petitioners were photographs made in July 1948, whereas the evidence showed the respondent had taken measures to correct the abuses so shown. It was shown without dispute that about a mile north of respondent's plant there was an open kettle 'wet' type rendering plant where animal viscera and bones were left in the open to rot, and create offensive odors and draw flies. The respondent was in no manner responsible for such condition.

The case of King v. Columbian Carbon Co., 152 F.2d 636, 639, by Circuit Court of Appeals, 5th Circuit, has a fine discussion of the law applicable to nuisances and their abatement. We think the following appropriate to our case:

'A business which is lawful in itself may become a nuisance either because of the locality in which it is carried on or because it is conducted in an improper manner. 31...