276 F. 812 | 5th Cir. | 1921
This was a suit in equity brought by the appellant, a citizen of Illinois, living in Chicago, against “the appellees, the city of Dallas, the State Fair of Texas, a Texas corporation, the Fair Park Scenic Railway Company, a Texas corporation, and Palmer G. Cameron, the manager of the last-named corporation. The relief sought was an injunction restraining the appellees, or either of them, from operating or permitting others to operate a described scenic railway in its present location on premises separated by Exposition avenue in the city of Dallas from a lot owned by the appellant, upon which is a residence containing 18 rooms, which is used as a boarding house, and such other relief as the appellant may be entitled to. The bill contained averments to the following effect:
The material allegations of the bill were put in issue. The testimony of a number of witnesses was taken. That testimony was in conflict on the question of the noise incident to the operation of the scenic railway having the effect of seriously interfering with ordinary conversation carried on in, the front porch of the boarding house, or of keeping occupants of that house from sleeping. A nephew of the appellant occupies tlie house mentioned, and he and his wife have been running it as a boarding house for several years. That nephew has lived on that lot continuously since 1889. lie was connected with horse racing in Fair Park until 1912, when the races were done away with. His mother built the house now on the lot in 1908, after the scenic railway was built and was in operation. Since that house was built it has been continuously used as a boarding house by that nephew or memr hers of his family. The appellant became the owner of the property in 1918, paying $8,000 for it. Before he bought the property he had held a mortgage on it.
So far as appears, the operation of the scenic railway was not complained of by any keeper or occupant of the hoarding house until after the city of Dallas, before this suit was brought, closed a part of Ex
The conclusion is that the record does not show that the court erred in refusing the injunction prayed for. The decree is affirmed, so far as it denied equitable relief, and the cause is remanded, with direction that the appellant have leave to apply to the trial court for an order transferring the suit to the law side, pursuant to equity rule 22 (198 Fed. xxiv, 115 C. C. A. xxiv).
Modified and affirmed.