Von Hatzfeld v. Neece

• Decision Date: 26 June 1920
• Docket Number: (No. 9462.)
• Citation: 223 S.W. 1034
• Parties: VON HATZFELD v. NEECE et al.
• Court: Texas Court of Appeals

Page 1034

223 S.W. 1034

VON HATZFELD v. NEECE et al.

(No. 9462.)

Court of Civil Appeals of Texas. Ft. Worth.

June 26, 1920.

Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.

Suit by C. T. Neece and others against Chas. Von Hatzfeld. From an order refusing to wholly vacate temporary writ of injunction, defendant appeals. Judgment reversed, and writ vacated and set aside.

Penix, Miller, Perkins & Dean, of Mineral Wells, for appellant.

Gross, Gross & Zivley, of Mineral Wells, for appellees.

CONNER, C. J.

This appeal is from an order of the district court of Palo Pinto county refusing to wholly vacate a temporary writ of injunction theretofore issued upon the petition of the appellees in this case. The material allegations of the appellees' petition, which form the basis of the temporary writ that had been issued, are as follows:

"Plaintiffs further allege that said property is in a very desirable residence portion of the city of Mineral Wells, Tex.; in fact, one of the best in said city; that said street is one of the most public thoroughfares in the city; that plaintiffs Neece and Miller have recently purchased their respective homes, as hereinbefore described, because of the valuable and attractive location of same; that said purchases were made and their homes established on said lots because of the surrounding houses and lots being exclusively for residences; that plaintiff C. C. Bennett purchased his said lot for the purpose of erecting thereon a fine residence for sale, because of its fine location, as hereinbefore alleged with respect to the homes of the said Neece and Miller. Plaintiffs allege that the residence houses on said lots are set back about 12 feet from the street line, leaving a yard in front of each house.

"Plaintiffs further allege that the defendant has begun the erection and construction of a wooden store building on the lot adjoining the lot belonging to the said Neece, and being part of said block No. 17, Wiggins' addition to said city, which is being erected flush with the line of the street and about 10 feet from the southeast corner of the driveway leading from the street into the garage on the lot of the said plaintiff Neece, and which extends back west about 40 feet and obstructs the free passage of air and the view of plaintiff's premises from the south and southeast; that defendant is erecting said building for the purpose of opening some kind of a mercantile business therein, to wit, a grocery store, in which will be handled such goods, wares, and merchandise as is usual and customary in such business, among which are fruit, vegetables, fruit and country produce; that the same will be 12 or 15 feet high, and will injure plaintiffs' property by rendering same less comfortable and reducing the value thereof in large sums of money, the amount of which cannot now be ascertained; that said building and the business proposed to be carried on therein will be a continuous nuisance to the plaintiffs and a material damage to the value of their property, by creating unpleasant odors, smells, and collections of refuse and boxes, and by drawing flies to the neighborhood, thereby jeopardizing and menacing the health and comfort of plaintiffs and their families; that said building and said business, if permitted to stand and be conducted therein, will render plaintiffs' property undesirable and unsatisfactory to them and to their families, and reduce the value thereof to such an extent that plaintiffs cannot sell their said properties for anything like the amount they have invested in them."

Upon a motion to dissolve, the court overruled appellant's demurrer to the petition, and heard evidence offered by the plaintiffs in support of their allegations, and dissolved the writ in so far as it restrained the defendant from the erection of the building described in the petition, but otherwise continued the operation of the temporary writ restraining the defendant from using the house and premises as a grocery store until a final hearing of the cause upon its merits.

Complaint here is made both of the action of the court in overruling the defendant's demurrer to the petition and in further restraining him from the use of the premises in conducting the business of a grocer as designed by him, and we have concluded that both complaints are well founded.

The power of a court of equity in a proper case to restrain the construction of buildings for the conduct of a business which, to a material extent, results in an injury to or annoyance of adjoining owners, is undoubted. But it is said in treating of the subject in High on Injunction, vol. 1, § 781, that—

"In determining whether a proper case is presented for relief by injunction against nuisances to buildings in cities, a satisfactory test is whether the matter complained of produces such a condition of things as in the judgment of reasonable men is productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and such as, in view of the circumstances of the case, is unreasonable and in derogation of plaintiff's rights."

The same authority, in section 774 of the same volume, says:

"To justify a court of equity in enjoining a nuisance of the class under consideration, the person aggrieved must show to the court some actual substantial damage, and not merely a remote, contingent, or prospective injury."

It must be conceded, and appellees do concede, that the erection of the building and the business proposed to be done by the appellant is not a nuisance per se, that is, they do not inherently and necessarily amount to that character of nuisance which a court of equity will at once and as a matter of law enjoin. In a note to the case of Oehler v. Levy, 17 L. R. A. (N. S.) 1025, it is said:

"The rule that, where the `thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to...