City of Forney v. Mounger

210 S.W. 240 | Tex. App. | 1919

LEVY, J.

(after stating the facts as above). The first assignment of error complains of the refusal of the court to dismiss the suit for want of jurisdiction in the district court as to the amount in controversy. The petition alleged:

“This plaintiff says that the reasonable value of the improvements aforesaid destroyed by the defendant were reasonably worth the sum of $500, and that he has been further damaged in the sum of $15 per month for each and evfery month since the destruction of the improvements which resulted in this plaintiff being unable to rent his property as theretofore.”

[1] There is also a prayer in the petition for vindictive damages in the sum of $500. The legal damages allowable will be such as result from the injury the plaintiff has suffered; and, as alleged, the wrongs consisted in destroying the improvements on the property, alleged to be $500 in value, and in impairing the use and occupancy of the premises, alleged to be of the rental value of $15 per month. The face of the petition therefore does not, it is concluded, show that the amount of damages sought to be recovered is below the jurisdiction of the district court. And we do not think the record warrants the holding that the allegations of value were in point of fact fraudulently made to confer jurisdiction on the district court. The assignment is overruled.

[2-4] It is insisted that the town of For-ney had legal authority to do everything charged against it in the petition, and could not be held liable in damages for the act. The city council has the power to declare what shall be a nuisance, and to abate the same and to impose fines upon parties who may create, continue, or suffer nuisances to exist. But if the city council in the exercise of its powers to abate a nuisance destroys or expressly authorizes the destruction of buildings which in fact are not a nuisance, the municipality will .be held liable for damages sustained by the owner. Dillon on Municipal Corporations (4th Ed.) § 972; Joyce on Nuisances, § 350; City of Dallas v. Allen, 40 S. W. 324. And the declaration of the city council that the buildings were a nuisance in fact did not finally determine that question. On the contrary, the owner of the buildings is permitted to have adjudicated in a suit the question of whether or not the buildings .were in fact a nuisance. City of San Antonio v. Salvation Army, 127 S. W. 860; Ray v. City of Belton, 162 S. W. 1015. The ordinance as passed. by the city council had application only to the buildings in evidence. It declared:

“That the mule sheds now located on lots 1 to 8 inclusive, in Block 35, on Main Street in the city of Forney, Texas, owned by J. M. Mounger, be and is hereby declared to be a public nuisance and a menace to the health of the town.”

[5,6] And it is apparent from the evidence that the buildings in their location, manner of construction, and maintenance were not a nuisance. The nuisance the jury found to exist consisted only in the filth permitted to accumulate and remain on the lots and under' the sheds, and which nuisance was, as found by the jury, entirely removable and abatable without the necessity of destroying the sheds. And thus under these findings of the jury no inconvenience or danger to public health or welfare existed in the sheds themselves, but arose from a nuisance separable from the sheds, and which could have been obviated by the use of some measure far-less drastic than the destruction of the sheds. The fact that the nuisance was permitted under the sheds would not of itself authorize and justify the municipality in destroying the sheds. The destruction of the sheds, in such circumstances, was an unnecessary method of abating the nuisance arising from the filth. A municipality has the power and authority to compel the cleansing of premises. Article 846, Vernon’s Sayles’ Civil Statutes. And a municipality has the authority to prevent the owner of a stable from so ¡keeping and using the property as to be a nuisance affecting public health and comfort. Article 845, Vernon’s Sayles’ Statutes; Burditt v. Swenson, 17 Tex. 489, 67 Am. Dec. 665; Ex parte Broussard, 74 Tex. Cr. R. 333, 169 S. W. 660, L. R. A. 1918B, 1091, Ann. Cas. 1917E, 919. The abatement as a remedy must be limited by its necessity, and no unnecessary injury to property must be permitted. For instance, as said in State v. Railway Co., 78 W. Va. at page 539, 89 S. E. at page 293, L. R. A. 1916F, 1001:

“If the merchant has unlawfully sold or used liquors in his establishment, could his store be shut up and abated as a place of sale of dry goods, furniture, shoes, or clothing, as the case might be? If a man sold liquors in his home, would the court abate the place as a residence and turn his family out in the street?”

In view of the jury finding that the sheds .were not a nuisance, the trial court, it is believed, did not erif in awarding damages for the destruction of the buildings. The assignment of error is overruled.

[7] By the second assignment of error it is insisted that there was error in awarding an injunction against the plaintiff in error restraining it from any interference with the defendant in error in rebuilding on the lots. The injunction proceeding is a matter quite separate and Independent of, and not merely incident to, the suit for damages for destruction of the sheds. And it is essential that all pleadings should state specifically and clearly the grounds for such remedy. The only allegation in the petition pertaining to the injunction is:

“That the said city of Forney in refusing and denying to this plaintiff the right and privilege of erecting and rebuilding the barn sheds on his said property (which was destroyed as herein complained of), and is threatening to prosecute the plaintiff criminally should he attempt to rebuild his said sheds and barns on his said lots.”

[8] That the building intended to be erected was of the kind and character that could properly be erected in that part of the town does not appear from the allegations that the city was wrongfully refusing the “right and privilege” of building on those lots. The privilege of rebuilding might have been denied, for aught that appears, because it was to be a wooden building within the prescribed fire limits. Neither the petition nor the proof is sufficient to sustain the award of the injunction.

The judgment is modified so as to deny the injunction, and as modified is in all things affirmed. The cost of appeal is taxéd against the defendant in error.

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