Royalty v. Strange
Royalty v. Strange
Opinion of the Court
This suit was brought by appel-lee, W. T. Strange, against appellants,George W. Royalty, George W. Cole, and Eli W. Gaffney, to recover certain alleged damages and for a mandatory injunction requiring appellants to remove certain hogs which were being confined and fed near ap-pellee’s residence by appellants under such conditions and in such manner as to create a nuisance, and to perpetually restrain appellants from continuing such nuisance.
The question of damages is not involved in this appeal, and the prayer therefor will not be further mentioned in tins opinion.
The petition for injunction was filed on the 18th day of December, 1917. The testimony with reference to the question of whether the matter complained of -by appellee was or was not a nuisance which should- be abated was heard on the application for temporary injunction, pending a trial on the merits, on the 9th day of February, 1918.
On the 20th day of February, 1918, upon evidence amply sufficient to support a judgment for temporary injunction to restrain appellants from continuing some of the acts complained of, the trial court rendered a decree containing the following:
“It is further adjudged and decreed by the court that said writ shall enjoin and restrain the defendants and eaoh of them and their agents and employés from operating and conducting the hog ranch in its present location, near the residence of the plaintiff, and said writ shall also enjoin and restrain them and each of them from operating and conducting said hog ranch at any place where it will be a nuisance and where it will interfere with the comfort, enjoyment, and health of the plaintiff or his family in their home until the further orders of this court.
“This decree is based upon the evidence adduced herein on the 9th day of February, 1918.”
The court by proper order suspended tbe effect of tbe decree pending this appeal.
Tbe main and controlling complaint made of tbe decree rendered is that tbe same absolutely prohibits the operation of appellants’ bog ranch within certain undefined limits, without respect to the manner or method in which the same is conducted, and without proof or evidence negativing the fact that the alleged wrong and injuries suffered by appellee could not be prevented and obviated by a relatively slight change in the location of said hog ranch, or in the method and manner of conducting the same; that it was error for the court to order the issuance of an injunction in such general terms that appellants could not readily know what they were restrained from doing.
The only part of the decree which throws any light on! this question is that portion which precludes appellants from conducting their ranch at any place where it will ho a nuisance and interfere with the comfort, enjoyment, and health of the plaintiff and his family. This is so vague, indefinite, and uncertain as to amount to an absolute prohibition against the conducting of a hog ranch anywhere near ajjpellee’s property, unless appellants assume the risk of being punished for a violation1 of the injunction.
Since appellants are manifestly unable to determine just what facts might cause the court to conclude that their hog ranch constitutes a nuisance to the appellee, the order as entered practically amounts to an inhibition against their conducting such hog ranch at any place in that neighborhood or on any portion of their property.
In the case last cited it is said:
“A lawful business may be' conducted in such manner as to become a nuisance, and in such case the parties so conducting it might at the suit of one injured thereby be restrained from continuing to conduct it in such manner, but they could not be denied the right to carry on the business in a proper manner.”
We have reached the further conclusion that the decree of the court was in such general terms that appellants cannot know what they are restrained from doing, and for that reason the same should be reversed. Such decree first enjoins appellants from operating and conducting their hog ranch in any manner near the residence of appellee, without naming any specific distance; second, it enjoins them from conducting such ranch at any place where it will be a nuisance and where it will interfere with the comfort, enjoyment, and health of appellee or his family in their home, without specifically pointing out or naming the attempted forbidden limits, or place, and as to what specific acts in conducting their hog ranch they are prohibited from doing, so that they may protect themselves from the ever present danger of being fined by the court for a breach of the terms of such decree. We think no person enjoined from the performance of acts by an order of court should -be left in doubt and confusion as to what acts are intended to be prohibited by said order. “The order as entered puts the appellants in the embarrassing attitude of being compelled to find out at their peril what conduct on their part might be held by the trial judge to constitute a nuisance as to appel-lee.” Such order, we think, should not be upheld. Lone Star Salt Co. v. Blount, 49 Tex. Civ. App. 138, 107 S. W. 1163; Robinson v. Clapp, 65 Conn. 365, 32 Atl. 939, 29 L. R. A. 582; 22 Cyc. 958.
In 22 Cyc. it is said that the rule has been established:
“That the injunction should be so clear and certain in its terms that the defendants may know what they are restrained from doing.”
In the lease of Lone Star Salt Co. v. Blount, supra, the Court of Civil Appeals, in passing upon the question under consideration, cites the case of Ballentine v. Webb, 84 Mich. 38, 47 N. W. 485, 13 L. R. A. 321,. which was an action to restrain a defendant from maintaining a slaughterhouse for swine, on the ground that it constituted a nuisance, and our Court of Civil Appeals adopted the following language from the cited case:
“ ‘The trial court decreed that defendant refrain from using or employing the building and sheds erected on defendant’s premises for the purpose of a slaughterhouse wherein to slaughter hogs in such a way as to be offensive to, or become a nuisance to, the complainant, and that defendant desist and refrain from using or employing the said inclosure or building for the purpose of. confining therein quantities of swine or other animals in such a way as to be offensive to, or to be a nuisance to, the complainants, or any of them; and that defendant desist and refrain from using said inclosure, or any part thereof, as a drying yard in which to dry hair or bristles taken from the slaughtered swine.’ In passing upon this decree the Supreme Court of that state said: ‘The trouble with the decree is that it fails to point out specifically what defendant is required to do in order to comply with its requirements. To adjudge that defendant should so conduct his business as not to be offensive is to give him no rule of conduct which the law had not before prescribed. The decree should have specifically pointed out the things that defendant was required to do and refrain from doing, in order to abate the nuisance which the court found to exist.’1 ”
For the reasons pointed out, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
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Reference
- Full Case Name
- ROYALTY Et Al. v. STRANGE
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