
    DALLAS LAND & LOAN CO. v. GARRETT.
    (No. 9604.)
    (Court of Civil Appeals of Texas. Dallas.
    June 20, 1925.
    Rehearing Denied Oct. 24, 1925.)
    1. Appeal and error c§=>488(2) — Order dissolving temporary injunction may be suspended pending appeal, whether motion to dissolve was predicated on law or facts.
    General demurrer to petition for injunction challenges its sufficiency to entitle plaintiff to relief, and, on being sustained, dissolves temporary writ as effectually as if order resulted from hearing on facts, so that court may suspend order of dissolution pending appeal therefrom, under Yernon’s Ann. Civ. St. Supp. 1922, art. 4644, whether motion to dissolve was predicated on law or facts.
    2. Injunction <S=»118(3)— Allegation that eaves of garage to- be erected by defendant will extend over plaintiff’s lot equivalent to allegation that part of lot under eaves will be appropriated by defendant for his own use and benefit; “building.”
    Allegation of petition to enjoin erection of garage that eaves will extend over plaintiff’s lot is in effect an allegation that part of lot under eaves will be appropriated by defendant for his own use and benefit, grant of house impliedly carrying title to all land under it, including that under eaves, which are part of building (citing Words and Phrases, Second Series, “Building”).
    3. Waters and water courses <@=jI2I — Duty of owner to prevent shedding of water from roof on another’s land.
    It is duty of building owner to keep in serviceable condition gutters, spouts, or other means to dispose of rainwater reasonably to be expected, so as to prevent shedding thereof from his roof on another’s premises.
    4. Injunction <S=>50 — Lot owner entitled to injunction against erection of garage on adjoining lot with eaves extending over plaintiff’s lot, though entitled to sue at law for damages.
    Under Rev. St. 1911, art. 4643, lot owner is entitled to injunction against erection of garage on adjoining lot in such mariner as to appropriate portion of plaintiff’s lot under eaves of garage and discharge rainwater from roof thereof on plaintiff’s premises, though plaintiff could recover resulting damages in action at law.
    5. Injunction <@=>137(2) — Property destroyed and rendered profitless by order forbidding owner to do with it as he chooses.
    Property consists, not only in ownership and possession, but in unchallengeable right to use, enjoy, and dispose of it, and any court order forbidding owner to do as he chooses with property, except to create nuisance, destroys it and renders it profitless.
    6. Injunction <@=>137(4) — Court should not forbid owner to do as he chooses with property, if facts are doubtful or uncertain.
    Court of equity should not issue order forbidding owner of property to do with it as he chooses, except to create nuisance, if facts are of doubtful or uncertain nature or based on imagination, conjecture or guesses.
    7. Adjoining landowners <@=>10(3)— Owner may erect structure obstructing light, air, or view.
    Owner of property, whatever his motives, may erect anywhere' thereon any sort of structure, not a nuisance, though light, air, or view of another may be incidentally obstructed.
    8. Evidence <@=>20(l) — Common knowledge that automobiles and garages as ordinarily used are not nuisances.
    It is matter of common knowledge that automobiles and garages, as ordinarily used, are not, and do not become by such use, nuisances.
    9. Injunction <@=>11 — Court cannot assume proposed garage on adjoining lot will become nuisance.
    In suit to enjoin erection of garage on adjoining lot, court cannot assume that defendant’s tenants, who may occupy apartment house thereon, will so use or maintain garage as to make it a nuisance.
    10. Nuisance <@=>4 — Disagreeable things not nuisances merely, because affecting value of property.
    Disagreeable, unsightly, and undesirable things in compactly built and inhabited city or town are not nuisances, merely because they affect value of property to some extent.
    11. Injunction <@=>34 — Fire hazard no reason for injunction against erection of garage on adjoining lot.
    That house may be subjected to greater fire hazard, demanding greater insurance premium, by erection and maintenance of garage on adjoining lot, is no reason for injunctive relief.
    Appeal from District Court, Dallas County; Royall R. Watkins, Judge.
    Suit by the Dallas Land & Loan Company against R. L. Garrett. From an order dissolving temporary injunction, plaintiff appeals.
    Reversed and remanded, with instructions.
    Austin C. I-Iatchell, of Dallas, for appellant.
    Callaway, Dalton & Callaway, of Dallas, for appellee.
   LOONEY, J.

This appeal is from an order of the court sustaining a general demurrer to appellant’s petition. As the questions presented for review challenge the correctness of the action of-the court sustaining the demurrer, it becomes necessary to state the substance of appellant’s petition:

Appellant alleged that it owned lot No. 12 in block No. 6, Munger Avenue addition to the city of Dallas, upon which was a good residence occupied by tenants; that appellee owned lots Nos. 10 and 11 in said block, and had under construction on lot 10, then nearing completion, an apartment house consisting of 12 apartments, and was threatening to erect, and would erect unless restrained, a garage house on rthe boundary line between appellant’s lot No. 12 and appellee’s lot No. 11, 100 feet in length, subdivided into 12 compartments, for the accommodation of the tenants of the apartment house; that same is to be located 6 feet from the house of appellant, and will extend the full length of said house; that the back wall of the garage is to be of brick, 10 feet in height at the rear, gradually increasing to 12 feet in front, and, when completed, will shut off light and air from appellant’s house, and.the eaves of the same will extend over on appellant’s lot the full length of the building, thus appropriating a part of appellant’s lot; and, further, that the roof will be so constructed as to cause the water from rainfalls to be carried and emptied on appellant’s lot, all to its great damage.

It is alleged that it is wholly unnecessary for appellee to erect the garage building in the manner and at the place contemplated, as -he has sufficient room elsewhere on said lots where the same can be placed without injury to himself or damage to appellant.

It is further alleged that the garages will at all times have from' 6 to 12 automobiles, day and night; that they will contain gasoline, oil, and grease that will leak, causing trash, filth, and germs to accumulate in the garage house, will emit noxious, offensive, unpleasant and unhealthful gases, odors, and vapors, thus polluting the atmosphere, which will, on account of the location of the garage building, be carried into the house of appellant, materially discomforting, annoying, and injuring persons residing therein, and to the detriment and damage of appellant’s property; and that by reason of these conditions the fire hazard and cost of insurance on appellant’s property will be increased.

It is further alleged that the proposed erection of the garage building in the manner and place designated is uncalled for, is done with malice and spite on the part of appellee, with the specific intent and design on his part to injure and harass appellant, to its damage in the sum of not less than $2,500.

Appellant prayed for a temporary writ, to be made final on bearing, and for such damages as it may bare suffered by tbe time tbe case is tried. Tbe judge granted tbe temporary writ on condition that appellant execute a bond in tbe sum of $500, restraining appellee from erecting, or attempting to erect, tbe garage building, and that be be notified to appear before tbe court May 23, 1925, and show cause, if any, wby tbe restraining order should not be continued in force until further orders of court.

On tbe bearing of appellee’s motion to dissolve tbe temporary writ tbe court sustained a general demurrer to tbe petition, and, as appellant declined to amend, the same was dismissed and tbe writ dissolved, from which order of dissolution appellant prosecutes this appeal. Tbe court entered an order suspending tbe effect of tbe order appealed from, and-continued in force tbe temporary writ pending appeal.

Tbe first question for our consideration is presented by tbe motion filed in this court by appellee to dissolve tbe temporary writ, continued in force by order of tbe trial court. This motion is based on tbe proposition that tbe trial judge was without authority to enter tbe suspending o'rder, for the reason that tbe court, having dissolved tbe injunction and dismissed 'the petition, lost all jurisdiction and authority. Article 4644, Vernon’s Ann. Civ. St. Supp. 1922, makes provision for an appeal from an order of tbe court dissolving a temporary writ of injunction, and in this connection provides as follows :

“* * * But gueh appeal shall not have tbe effect to suspend the order appealed from, unless it shall be so ordered by the court or judge who enters the order. * * * ”

Tbe general demurrer urged by appellee to the petition of appellant was one of tbe grounds of the motion for tbe dissolution of tbe temporary writ. It challenged, at tbe outset, tbe sufficiency of tbe petition to entitle appellant to injunctive relief, and, on being sustained by tbe court, dissolved tbe writ theretofore issued just as effectually as if tbe order bad resulted from a bearing on tbe facts. Tbe right to appeal is in nowise conditioned on tbe particular ground, or grounds, on which tbe motion to dissolve may be predicated, whether of law or fact, and tbe authority of tbe court to suspend, during tbe pendency of tbe appeal, the order appealed from exists in either case. Vogelsang v. Gray (Tex. Civ. App.) 224 S. W. 535, 539.

Tbe other grounds urged by appellee in bis motion to dissolve tbe temporary writ have been considered, but as they are, in our opinion, without merit are overruled.

On tbe appeal proper, appellant contends that tbe trial court erred in sustaining a general demurrer to its petition and in dismissing tbe same for tbe reason, among others, that it appeared from its allegations, admitted to be true by tbe demurrer, that appellee was in tbe act of constructing, and would, if not enjoined by tbe court, construct, a garage bouse with tbe eaves thereof extending over onto the lot of appellant, thus appropriating to bis use and benefit a strip of appellant’s land, and that tbe roof of the structure will be built so as to conduct and empty tbe water of successive rainfalls on appellant’s lot, injuring and damaging tbe same. Tbe allegation of appellant that tbe eaves of tbe structure to be erected by ap-pellee will extend over onto tbe lot of appellant was, in effect, an allegation that so much of tbe lot alongside tbe building under tbe eaves will be thus appropriated by appellee for bis own use and benefit. It is well settled that the grant of a bouse carries with it, by implication, title to all land under tbe same, and, as tbe eaves are a part of tbe building, tbe land under tbe same will also be included in the description. Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Supplee v. Cohen, 80 N. J. Eq. 83, 83 A. 373, 375; 1 Words and Phrases, Second Series, p. 514; Berry on Restrictions on tbe Use of Real Property, § 83, p. 120.

Tbe doctrine above ’ announced is Very clearly stated in Sherman v. Williams, supra, as follows:

“The well settled rule that the grant of a house carries with it the title to all the land under the house which the grantor owns, extends to all the land covered or occupied by the house itself. As the eaves are a part of the building, the land under them is included in the description, when owned by the grantor. Where land is conveyed, bounded on a house as a monument, the land to the edge of the eaves only passes, that being the extreme part of the building; so where the house itself is, granted or demised, the extreme parts of the house are the bounds and limits of the conveyance, and such title as the grantor has to the land thus occupied by the whole house passes by the grant or demise.”

Appellant, in our opinion, is entitled to be protected against tbe discharge on bis lot of rainwater conducted by tbe roof of tbe garage bouse of appellee. It is clearly the duty- of tbe Owner of a building to care for rainwater, such as may reasonably be expected, by keeping in serviceable condition gutters, spouts or other means to dispose of tbe same so as to prevent tbe shedding Of water from bis roof on tbe land and premises of another. 40 Cyc. 650, 20 R. C. L. § 50, p. 434; Copper v. Dolman, 68 Iowa, 757, 28 N. W. 59, 56 Am. Rep. 872; Fitzpatrick v. Welch, 174 Mass. 486, 55 N. E. 178, 48 L. R. A. 278.

Tbe Statutes of this state (article 4643), on tbe subject of Injunctions, contain, among others, tbe following provision:

“Judges' of the district and county courts shall, either in term time or vacation, hear and determine all applications and may grant writs of injunctions returnable to said courts in tile following cases:
“Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.” "

If, therefore, appellant is entitled to - be relieved from the appropriation by appellee of that portion of its lot under the eaves of the garage, and from the discharge on its premises of rainwater from the roof of this building, certainly appellant is entitled to have appellee restrained from the erection of the building in a manner that will produce these damaging results. Appellant is entitled to be left in the undisputed enjoyment and use of its premises, free from such an invasion as is threatened by appellee, and it is no answer to say that an action at law would exist in its favor for the recovery of such damages as might result to its premises therefrom. In such a situation, a court of equity should grant relief by preventing, in its incipiency, the invasion of another’s rights. Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, 32 L. R. A. (N. S.) 1010, and authorities cited in note.

We therefore sustain the contention of appellant to the effect that the erection of the garage building with eaves projecting over onto its lot will be an appropriation by ap-pellee to his use and benefit of so much of the land as falls under the eaves, and that the emptying of rainwater from the roof of the garage building will constitute a continuing damage and nuisance.

Appellant makes the further contention that the other grounds for injunctive relief alleged in its petition were good and should have been sustained by the court, to wit, that the proposed erection of the garage building by appellee in the place and manner as alleged was entirely uncalled for, and in disregard of appellant’s rights; that the automobiles to be housed in the garage will contain gasoline, oil, grease, etc., that will leak out, causing trash, filth, dirt, and germs to accumulate, increasing the fire hazard of appellant’s property, and emitting deadly, offensive, unhealthful gases, odors, and fumes, polluting the atmosphere, materially discomforting and annoying all persons residing in appellant’s house, injuring their health, and damaging appellant’s property.

A statement of a few fundamental yet well understood rules of law may assist us in understanding and disposing of the assignment here presented.

Property consists, not only in ownership and possession, but in the unchallengable right of its use, enjoyment, and disposition. If, therefore, anything destroys or seriously interferes with the free exercise of this right, to that extent the property itself is destroyed. If the right of the owner to use his property is denied or seriously interfered with, it is necessarily rendered profitless. It follows that any order issued by a court forbidding the owner of property to do with it as he chooses, so long as he does not choose to create a nuisance, destroys the chief element of value in property. Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513. These self-evident propositions should admonish a court of equity that before such radical procedure is entered upon, the facts upon which the court is called to act should be of no doubtful or uncertain nature, and should not be based on imagination, conjecture, or guesses. Lancaster v. Harwood (Tex. Civ. App.) 245 S. W. 755.

The owner of property has the undoubted right to erect thereon any sort of a structure. whatsoever, and place the same where he chooses, .provided, as before stated, the structure or the proposed use is not such as the law will pronounce a nuisance. This is true notwithstanding the light, air, or view of another may be incidentally obstructed. Having the undoubted legal right to improve his property and to place the same where he chooses, the motives that actuate him in so doing, whether good, bad or indifferent, are immaterial. 20 R.’C. L. § 45, p. 429, section 47, p. 431.

In this connection it is pertinent to observe that automobiles and garages for family úse have largely taken the place of the horse and buggy, stables and buggy house, of former days. It is a matter of common knowledge that automobiles and garages, as ordinarily used by people the country over, are not, and do not by such use become, nuisances. This court cannot assume that the tenants of appellee who may occupy the apartment house in question will use or maintain the garages in such manner as to become nuisances.

Matters that annoy by being dis-' agreeable, unsightly, and undesirable are not nuisances simply because they may to some extent affect the value of property. These are some of the natural and necessary incidents of life in a city or town, compactly built and inhabited. Those who reside or own property in such a city or settlement must rest content, so far as the law is concerned, notwithstanding they may be subjected to many such annoyances and discomforts. The fact that appellant’s house may be subjected to a greater fire hazard, demanding a greater insurance premium, by reason of the location and maintenance of the garage building, furnishes no reason for injunctive relief; this incident, with others, is one of the consequences of the ownership of property in a city where the use and improvement of property necessarily affects the-property of adjoining owners. Gray v. Woodring Lbr. Co. (Tex. Civ. App.) 197 S. W. 231, 234.

The judgment will be reversed and the •cause remanded to the trial court, with instructions to reinstate the case and to proceed therewith in the future in harmony with the views expressed above; that the temporary writ of injunction be continued in force pending the trial of the case on its merits, restraining appellee from erecting a garage building such as is proposed, with eaves projecting over onto the lot of appellant, and that will empty rainwater caught upon its roof upon the lot of appellant.

Reversed and remanded, with instructions. 
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