delivered the opinion of the court.
We adopt the statement of the pleadings and the result of the trial made by the Honorable Court of Civil Appeals as follows:
“As grounds for the injunction, plaintiffs alleged, in substance, that they are, and for many years have been, the owners of certain premises, situated in said city within 120 feet from that portion of Main Street above described, upon which and as a part of said premises there is a large and commodious hotel, built and conducted in a manner calculated to secure the patronage of the traveling public, which would be secured and maintained were it not for the annoyance- and disturbance, canoed by defendant’s wrongful and unlawful use of said street between the points mentioned; that at all hours, day and night, and especially at night, between the hours of nine p. m. and five a. m., defendant is constantly switching and propelling heavy locomotives and cars along railway tracks unlawfully built and maintained along that part of Main Street, which causes great noise, the ground to be constantly jarred, defendant’s engines making loud, penetrating, and disagreeable sounds, the bells of the engines being constantly ringing, etc., to the great discomfort, of persons stopping at plaintiffs’ hotel, which disturb and are calculated to disturb the slumber of persons stopping at said hotel; that by reason thereof many guests who stopped there have left and others stopping there will leave, and many persons, who would otherwise become guests, will not do so;- that in the future, unless relief be granted to plaintiffs, many persons who would otherwise have stopped at said hotel, will omit to do so on account of said acts of defendant.
“That by reason of the premises, the property which belongs to Mrs. DeGroff, and the business of plaintiff, Charles DeGroff, as a hotel keeper, has been greatly damaged, and that such property and business will still be further damaged and render the premises valueless as a hotel and destroy such business of the plaintiff,^ Charles DeGroff; that the damages plaintiffs have suffered and will suffer are not shared by the public at large, that such damages can not he estimated in any fixed, or approximately correct sum, and the injuries suffered are not susceptible of compensation^ in damages; that defendant threatens to continue its unlawful and injurious acts, and will do so unless restrained therefrom by the court; that plaintiffs have no adequate remedy at law, etc.
“The defendant answered by general and special demurrers, a general denial, and a special plea alleging in substance that^ it is a railway corporation created for the purpose of carrying freight and passengers, and had existed as such for over twentv-five years; that its road traverses almost the entire State of Texas, and is an important link in trans-continental routes "between the Atlaittie and Pacific Oceans; that under an ordinance passed by the city council of the city of El Paso in the year 1881, and by several amendments thereto, it acquired a right of way through said city over and upon Main
“The case was tried before the court without a jury, and a decree was rendered perpetually enjoining and restraining the defendant from using that portion of Main Street in the City of El Paso, which lies between its intersection with the easterly line of Stanton Street
“ ‘Provided, however, this shall not in any way be construed as prohibiting passenger, freight or other trains coming in over the main line from the west, or such trains as have been made up and are departing for the Avest, passing over the switches and side tracks onto the main tracks within said limits, or from stopping for a time reasonably sufficient to throw switches for that purpose.
“ ‘It is expressly ordered by the court, however, that this judgment, and no part thereof, shall be construed as to apply to any tracks of defendant not situated on that portion of Main Street which is herein described, and this judgment and injunction hereby ordered shall not_ apply to any ground or territory other than to that portion of Main Street herein mentioned and defined/”
The judge of the trial court filed conclusions of fact which we condense in part and copy a portion as follows:
First. On the 17th day of February, 1881, the city council of the city of El Paso adopted an ordinance by which it granted to the Galveston, Harrisburg & San Antonio Railway Company the right of way over a great number of the streets and alleys of the said city, Avhich included Main and San Francisco Streets and contained this provision:
“Provided, that the right of way herein granted to said company for its railway, shall fnotj exceed five feet from each side of a center line of the track thereof, from the point where such track touched San Francisco Street, to the southwestern boundary of the depot grounds as hereinafter defined, and between which points no side tracks, switch or srmr shall he constructed.”
On March 24, 1881, the said city adopted a second ordinance by Avhich it enlarged the right of way granted to the said railway company to the width of 16 feet and repealed the inhibition in the first ordinance against the building of said tracks, switches, etc., upon certain streets.
On May 14, 1883, the said city council adopted a third ordinance by which the right of wav was extended 12 feet from each side of the 16 feet theretofore granted, making 40 feet in width, and the said ordinance contained these provisions:
“Beginning at the center of San Francisco and Anthony Street, as shoAATi on map, knoAvn as the official map of the city, and running thence through said San Francisco Street twelve feet on either side of said sixteen foot grant to the intersection of said San Francisco Street with Main Street: thence with Main Street twelve feet in width on each side of said sixteen foot right of way to the northeasterly boundary of Kansas Street, with privilege and right to said company to erect on said part of said street any additional tracks of railway as it may desire.”
“Section 3. That so much of said Main Street as lies between Kansas Street and Stanton Street be and the same is,, from and after
“The defendant railway company, as appears from the map introduced in evidence, is operating and maintaining on Main Street, between Stanton Street and Mesa Avenue, in addition to the double tracks of its main line, three side tracks; one leaving the main line on the south side thereof about a hundred feet west of Mesa Avenue, continuing east along Main Street, and diverging to the south from the main line to a point about fifty feet east of Mesa Avenue, where it leaves Main Street and enters the private property of the defendant railway company, and connects with the defendant’s yards; this track constituting the main lead track from the west to the freight yards of the defendant company. The other two tracks on the north of the north track of the main line join the main line about fifty feet from the east line of Mesa Avenue on Main Street and run east on Main Street to the east line of Stanton Street, and constitute the main lead to the coach tracks, coal yards, machine shops, etc., of the defendant. That the part of said side tracks and leads on Main Street as aforesaid, are constantly used for switching purposes; and the yard engines, in the course of making up trains and shifting cars for various purposes, are constantly going hack and forth over same within said'territory, ringing their bells, and stopping and starting; that the moving back and forth of the switch engines and cars attached thereto on said tracks and leads and upon the main line between Mesa Avenue and Stanton Street while engaged in switching and shoving cars, causes a great deal of noise and vibration.
, “Second. That the plaintiff, Mrs. DeGroff, owns a large four-story building called “The Orndorff Hotel,” situated on Mesa Avenue, about ninety feet south of the south line of said Main Street, where same is intersected by Mesa Avenue. That plaintiff Charles DeGroff is conducting a .hotel in said building and the same has a large patronage.
“Third. That the noise caused by the moving hack and forth of switch engines while engaged in switching and shifting cars and making up trains upon all of said tracks situated on Main Street between Mesa Avenue on the west and Stanton Street on the east, arising from the escape of steam, the exhaust of locomotives, the coming together of cars, and the ringing of hells, is so great and constant as to annoy and disturb the guests at said hotel, and keep them from sleep and rest at night, as has been the case for some time past, and continues to be. That the vibration caused by the stopping and starting of the switch engines and cars attached, and the passage of such engines and cars up and down the tracks in the course of switching, causes the building of the said DeGroff to vibrate and shake, thereby disturbing the said DeGroff and his guests, making his hotel uncomfortable.
“Fourth. That in consequence of such condition the plaintiff’s property is seriously damaged and lessened in value, the said hotel’s patronage has been materially decreased, and his hotel business materially injured.
.“Fifth. That in addition to said switching there are some eighteen
“Sixth. That as now constructed, in order to get into and out of the defendant’s freight yards on the south side of the main line, it is necessary that trains should pass over said lead south of the main line, leaving the same, as stated, about one hundred feet west of Mesa avenue, and that in order to reach said yards on the north side of the main line from the west, as the same are now constructed, it is necessary that cars and engines enter the same upon said lead switch which joins the main line, as stated above, east of Mesa Avenue about fifty feet. That the use made of said leads by switch engines is, in effect, the use of said Main Street, between Stanton and Mesa Avenue, for yard purposes.
“Seventh. That, said south lead track, as it is now upon the ground on Main Street, was constructed in the year 1887 or 1888, and has continuously remained and been used without intermission and without any action being taken on the part of the city to oust the railway company up to the present time; and that the said Orndorff Hotel building was in use for hotel purposes long before the plaintiff, Mrs. DeGroff, acquired the property, and the said south lead was so used by the said defendant railway company long before that time.”
The plaintiff in error will hereafter be called the defendant and the defendants in error will be called the plaintiffs. In their petition the plaintiffs allege, in substance, that the use of Main Street as therein alleged has caused many guests who were stopping at the hotel to leave and, unless relief be given, many others will leave; that many persons who would have become guests of the hotel had not done so on account of the noises and disturbances produced by the acts of the defendant, but have sought hotel accommodations elsewhere, and will continue to do so in the future unless relief be granted as prayed for. The petition alleges “that by reason of the premises the value of the said real estate belonging to the said Mrs. Alzina DeGroff has been greatly depreciated and the business of the plaintiff, Charles DeGroff, as a hotel keeper, has been greatly damaged.” Ho other element of damage is claimed to exist. It is a well established principle, which is recognized in the petition, that the plaintiffs were not entitled to an injunction in this case if they had an adequate remedy at law, that is, if they could recover by a suit at law for the amount of the depreciation of the real estate and compensation for the decrease in the business of hotel keeping. It does not require authority nor argument to show that the decrease in the value of the real estate could easily be ascertained and could be compensated for in money. Therefore, the irreparable injury upon which the right to an injunction depends rests wholly upon the question whether the injury to the business of the hotel keeper is susceptible of ascertainment and of satisfaction in money. We are of opinion that the injury arising from the depreciation of the business constituted a good ground of recovery in an action for damages. Brunswick & W. Ry. Co. v. Hardey, 112
If Ave concede for the argument that plaintiffs had a right to an injunction, then the law required that they should prosecute that right Avithin a reasonable time after the nuisance Avas created by the operation of the trains upon that street. Madison v. Ducktown Sul. Co.,
What will be considered a reasonable time depends upon the facts and circumstances of the case. In some instances courts have held three years an unreasonable time to delay proceedings of this character and, in other instances, a longer time has been held to be reasonable. The facts, briefly stated, are: The lead tracks, upon which the operation of the trains is complained of, were constructed in the year 1888, and the acts complained of and now carried on upon said tracks Avere begun then and have been continued ever since, increasing only to meet the increase of business. This suit was instituted on the 27th day of June, 1907, nineteen years after the commencement of the use of the tracks for said purposes. It does not appear at Avhat time the hotel was built, but the plaintiff, Charles DeGroff, testified that he had been keeping hotel there more than nine years at the time of the trial and the house was there before he took charge of it, so it is a reasonable inference from the facts stated that the house had been there for a considerable number of years before Mrs. DeGroff became the owner of it. We are of opinion that, as a matter of law, the delay of nineteen years was unreasonable and for that reason the court should not have granted the writ of injunction. Counsel for
The question of issuing an injunction under such state of facts depends upon the circumstances and it is the duty of the- court to consider the relative injury to the plaintiffs by a continuance of the nuisance to that which would be inflicted upon the defendant and the public by granting and enforcing an injunction, and if the im jury to the plaintiffs appears to be greatly less in amount in comparison to that which will result to the railroad company and the public, then it is the duty of the court to deny the writ of injunction. (
The public convenience is of controlling importance in this class of cases, especially is it so in this case wherein it is shown that this railroad company carries the freight and passengers for El
The use of the tracks which are enjoined was lawful and indispensible to the operation of the railroad; it can not be prevented without destroying the usefulness of this public utility. A railroad can not be operated without locomotives which being moved by steam must produce noises. If removed beyond the limits of a city so as to place the yards out of contact with business houses and residences, their value to the public would be greatly impaired. Some one must suffer these inconveniences rather than that the public interest should suffer. If the defendant were compelled to remove to another part of the city, the same nuisance to other people would be caused by the same necessary operation of the machinery, and the citizens at that point could with greater propriety than plaintiffs seek another injunction. These conflicting interests call for a solution of the question by the application of the broad principles of right and justice, leaving the individual to his remedy by compensation and maintaining the public interests intact; this works hardships upon the individual, but they are incident to civilization with its physical developments, demanding more and more the means of rapid transportation of persons and property. The plaintiffs should be left to their action for damages; the injunction should not have been granted.
Plaintiffs rely upon Galveston, H. & S. A. Ry. Co. v. Miller,
It is ordered that the judgments of the District Court and the Court of Civil Appeals be reversed and judgment be here rendered that the petition for an injunction be denied and that the petition be dismissed. It is further ordered that defendant in error recover of Charles DeGroff and Mrs. Alzina DeGroff all costs of all of the courts.
Reversed and rendered.