32 Tex. 208 | Tex. | 1869
The question is, whether the defendant, sued as a trespasser for pulling down and removing plaintiff’s livery stable, can shelter himself under an ordinance of the town council of Bastrop, which ordered the sale and removal of the stable as a nuisance ?
The question is well settled that a corporation can exercise no power not clearly delegated in the act of incorporation, or arising by necessary implication out of some delegated power. (Angel & Ames, on Corporations, 97.) An ordinance, therefore, not warranted by the charter, is void, and can furnish no justification to persons acting under its authority. (Sedgwick on Stat. and Cons. Law, 466 and 468; Welch v. Stowell, 2 Doug. Mich. R., 323.)
The term “ nuisance ” is well understood, and means, literally, annoyance—anything that worketh hurt, inconvenience, or damage. (Blackstone, 3 Comm., 216; Burditt v. Swenson, 17 Tex., 489.) They arise from pursuing particular trades in populous neighborhoods; from acts of public indecency; keeping a disorderly house, a house of ill-fame, a gaming house, a livery stable, and the like. (2 Bouv., 248.)
The buildings in which the particular trades are carried on, or the houses which may be kept in a disorderly manner, or used for unlawful purposes, are not per S3 nuisances; but it is the abuse of them only which constitutes the nuisance. (Burditt v. Swenson, 17 Tex., 489; Dargan v. Waddell, Iredell and An. R., 244; Welch v. Stowell, 2 Doug. Mich. R., 323. The property in these tenements is protected by the constitution from such a summary process, and can not be taken or demolished for public uses, except on the award of competent authority and compensation therefor. (Sedg. on Stat. and Cons. Law, 464.)
If the common council may make such an ordinance in respect to the comparatively valueless stable of the plaintiff, why not a like one to be executed on the most elegant and costly
In the case before us the nuisance was not caused by the erection itself, but by the persons who resorted there, and the municipal authorities are armed with sufficient power to suppress the nuisance without resorting to the demolition of the building.
We are of opinion, therefore, that the court erred in charging that if the jury “ believe, from the evidence that the board of mayor and aldermen, by ordinance and resolution, condemned the said stable as a nuisance, and that in pursuance of this authority to abate the same the stable was sold to the defendant, in which event you will find for the defendant,” for which error the judgment is reversed and new trial awarded.
Reversed and remanded.