Trinity Portland Cement Co. v. Horton

• Decision Date: 14 May 1919
• Docket Number: (No. 1490.)
• Parties: TRINITY PORTLAND CEMENT CO. v. HORTON et al.
• Court: Texas Court of Appeals

Page 510

214 S.W. 510

TRINITY PORTLAND CEMENT CO. v. HORTON et al.

(No. 1490.)

Court of Civil Appeals of Texas. Amarillo.

May 14, 1919.

Rehearing Denied June 18, 1919.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Mrs. L. L. Horton against the Trinity Portland Cement Company, which was consolidated with an action by R. M. Horton against the same defendant. Judgment for plaintiffs, and defendant appeals. Affirmed.

Thompson, Knight, Baker & Harris, of Dallas (J. Hart Willis and Alex F. Weisberg, both of Dallas, of counsel), for appellant.

S. C. Lewis, of Dallas, for appellees.

HUFF, C. J.

This is an appeal from a judgment rendered in a consolidated cause, by agreement of all parties, upon one action brought by Mrs. L. L. Horton, December 4, 1916, and prosecuted to judgment upon an amended petition filed September 27, 1917, and also an action by R. M. Horton filed on the same dates as that of Mrs. Horton. The action is based upon an alleged nuisance created by appellant, the Trinity Portland Cement Company. For the purpose of this opinion it will suffice to state that the appellees alleged they owned a tract of land, approximately 200 acres, lying about one-fourth to one-half mile of appellant's cement manufacturing plant; that in the operation of the plant and in the manufacture of cement there were created large quantities of dust, etc.; that this dust, during certain seasons of the year and when the wind was in certain quarters, would blow away and upon the appellees' property, impairing the rental value of their land and injuring the crops thereon, rendering the occupancy of the property disagreeable and uncomfortable; and that such cement, dust, dirt, gases, and elements seriously affected the eyes, lungs, and the comfortable enjoyment of the premises by the appellees and produced great annoyance and inconvenience. The damages alleged were to the crops grown on their land and for personal inconvenience during the two years preceding the filing of the amendments. The appellant, in answer, alleged that for more than ten years it owned and operated the plant in question, and that it had been, during the years, a permanent business, occupying the same premises and operating in the same manner night and day; that it during that time had a very large substantial and extensive business, permanent in character, employing hundreds of employés; that the dust, etc., had not been intermittent or dependent upon any accident or contingencies. The appellant then pleaded the two years' statute of limitation as a defense in bar of the appellee's cause of action. The jury found no damages for rental value of the land or to the injury of crops grown on the appellee's land, but found that Mrs. L. L. Horton had been damaged $300 and R. M. Horton $200, between January 1, 1915, and September 26, 1917, by being seriously and materially interfered with in the comfortable enjoyment of their homes and premises, and annoyed, inconvenienced, and injured in their person by the operation of the cement plant between those dates. The facts show that the plant was completed upon appellant's tract of land in 1908, and had been constantly operated from that period up to the trial, day and night; that it is and had been during that time a costly and substantial structure, employing some 200 men; and that its output of the products was large per day. The appellees' land is about one-fourth of a mile from the plant and north. The testimony will warrant the finding that when the wind is from the south the dust, etc., falls on the land and homes of the appellees. When from the north it does not do so, or perhaps from other quarters; that in dry weather it falls on the land, but in wet it does not do so to so great an extent, if at all. The evidence also shows that the appellant uses what is known or termed the dry process in the manufacture of cement. There appears to be another process known as the wet, and there is some evidence to the effect that if the wet process is used the dust would not reach the premises of the appellee. The president of the Texas Cement Plant, another company, testified his company had changed from the dry to the wet process; that they thought the wet process practically eliminated the dust; and that they adopted that process for that purpose. The appellant requested the court to instruct a verdict for it, and the assignments presented are based upon the refusal to so instruct, presenting propositions that under the pleadings and facts the cause of action was barred by the statute of limitations and that limitation began to run at the completion of the plant on appellant's land, or at least upon the first injury.

The only question presented for our determination is whether the cause of action on which a recovery was had is barred by the two years' statute of limitation. The damages sued for and recovered were for personal discomfort, annoyance, etc., suffered within the two years next before the institution of the suit. The cause of action set up is for damages resulting from a nuisance. The brief of appellant admits the operation of its plant created a nuisance. That fact being established, the rules of law as to the accrual of damages resulting from nuisance must control. Apparently, at least, there appears to be some confusion among the many decisions of the various courts, and ours as well as others, as to when the cause of action accrued. We believe much of the trouble lies in not keeping in mind the clear distinction between a trespass and a nuisance. In trespass a right of action arises when the cause is created. The statute in trespass is put in operation at the date of the construction of the building or thing which actually invades the close of the complaint. Houston Waterworks v. Kennedy, 70 Tex. 233, 8 S. W. 36; Lyles v. Railway Co., 73 Tex. 95, 11 S. W. 782; Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62. In actions in the nature of a nuisance in which there has been no actual invasion of plaintiff's land, as a general rule, the first right of action does not arise until some injury has been suffered, no matter when the cause of injury occurred. Railway Co. v. Anderson, 194 S. W. 662; Southwestern Portland Cement Co. v. Kezer, 174 S. W. 661; Railway Co. v. Goldman, 8 Tex. Civ. App. 257, 28 S. W. 267; City of Houston v. Railway Co., 26 Tex. Civ. App. 228, 63 S. W. 1056; Grossman v. Railway Co., 99 Tex. 641, 92 S. W. 836. At common law the breaking of the close of another would give an action in trespass. For creating a nuisance the action would be case. In the action of trespass the grievance charged is the breaking and entering the complainant's close, and the offense is completed when the breaking and entry takes place, for which nominal damages are at least recoverable, whether there are any actual damages shown. For injury suffered by a nuisance the suit...