
    WAGGONER et al. v. FLORAL HEIGHTS BAPTIST CHURCH et al.
    (No. 705-4633.)
    (Commission of Appeals of Texas, Section B.
    Nov. 24, 1926.)
    1. Injunction &wkey;»62(3) — Injunction enjoining construction of church on lots restricted to residences -held properly refused, where restriction had expired.
    Where restriction that lots conveyed'should not within ten years be used for other than residence purposes had expired, refusal of injunction enjoining construction of church on lots mentioned Held proper, since-language of restriction did not evidence intention for perpetual restriction.
    2. Nuisance &wkey;>4 — Injunction will not be issued unless creation of nuisance is certain.
    Unless it is certain that a building, when constructed, will constitute a nuisance, injunction will not be issued, in advancé of structure.
    3. Nuisance <®=>3(I) — Church is not nuisance per se.
    It is self-evident that a church is not a nuisance per se.
    4. Nuisance &wkey;>34 — Whether proposed church . was nuisance was question of fact.
    Whether location, time, and manner of use of church, which defendants proposed to construct, was a threatened nuisance, was a question of fact, triable as any other fact issue, where witnesses could be heard and a verdict had.
    
      5. Nuisance <&wkey;32 — Petition alleging proposed church would constitute nuisance held sufficient.
    Allegations in petition to enjoin construction of church, on ground that it would constitute nuisance, held broad enough to demand trial of facts.
    6. Nuisance &wkey;>4 — To be enjoined as nuisance, use must be unreasonable under all circumstances.
    Use that will be enjoined as a nuisance is not every “hurt” inflicted upon another, but must be an unreasonable one under all the circumstances.
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit by T. J. Waggoner and others against the Eloral Heights Baptist Church and others, in which others intervened. Injunction was granted against defendant in part, and, from an order denying the injunction in part and dismissing suit as to latter, plaintiffs and interveners appealed to the Court of Civil Appeals, which certified questions to the Commission of Appeals.
    Questions answered.
    ■Bonner, Bonner & Fryer and Martin & O’Neal, all of Wichita Falls, for appellants.
    E. R. Surles and Carrigan, Britain, Morgan & King, all of Wichita Falls, for appel-lees.
   SPEER, J.

The Court of Civil- Appeals for the Second District certifies the following question:

“This suit was instituted by T. J. Waggoner and several other persons against the - Floral Heights Baptist Church, duly incorporated under the laws of the state of Texas, and its trustees, and L. H. Frank, Solon R. Featherston, and Thomas R, Wynn, as individuals, to restrain the defendants from erecting a church tabernacle on lots 9, 10, 11, and 12, in block No. 00, of the Floral Heights addition to the city of Wichita Falls, located within a district which was platted and designed for residential purposes exclusively, and in which district plaintiffs have established their homes; relying upon assurances that nothing but residences would ever be erected within such restricted district.
“According to allegations in the petition, on April 16, 1909, the Floral Heights Realty Company, a private corporation, duly incorporated under the laws of the state of Texas, acquired title to 409 acres of land situated near to and adjoining the city of Wichita Falls, Tex. Thereafter the company subdivided the tract into what is known as the Floral Heights addition to said city, laying off the same into lots, blocks, alleys, streets, and parks, and recorded the map of such subdivision in the deed records of Wichita county. The subdivision of the property was made for the purpose of selling the same to the public.
“At a meeting of the board of directors of the company, on February 2, 1910, a resolution was adopted, setting apart 18 blocks of the addition as a restricted residential district. Later, at another meeting of the board, a resolution was passed fixing a period of 10 years for the duration of the restriction upon any and all lots sold in the restricted area. The restricted area was set apart for residential purposes only, with the intention that no business of any kind should be carried on or any public building erected within said restricted area.
“According to further allegations in the petition, plaintiffs bought their restrictive lots in said restricted area and erected expensive residences thereon, which they are now occupying as their homes, all in close proximity to lots 9, 10, 11, and 12 in block No. 60, of the addition which the Floral Heights Baptist Church has contracted to purchase, and on which it is now undertaking to erect a church tabernacle to be used for public worship.
“According to further allegations, if said property is used for said purpose, plaintiffs and their families, while occupying their homes, will be greatly annoyed and harassed by a large number of automobiles and motor vehicles assembling in streets and alleys adjoining said property, by continuous noises caused by starting and stopping such vehicles, and the congestion of traflic along the streets in the vicinity of the proposed church building, and by the noises and confusion caused by those holding services and public meetings in the church, by loud singing, loud preaching, and the playing of various instruments of music; and that by reason of such annoyances plaintiffs and their families will be disturbed in their rest and sleep, also that the market value of the plaintiffs’ property will be greatly depreciated — all to the irreparable injury of the plaintiffs.
“Plaintiffs further allege that the defendant church does not need the edifice which it is proposing to build, since it already has on lots 16 and 17, in block 42 of the same addition, a church building which was erected about 5 years ago, which is sufficient to accommodate the wants of its attendants; and that, in addition thereto, its members live in close proximity to two other Baptist churches where they are welcome to attend, one being the First Baptist Church in the city of Wichita Falls, having a seating capacity of 2,000 people, and another church of the same denomination situated in another nearby portion of the city.
“The petition is replete with allegations of the relative locations of the properties of the plaintiffs to the property on which the church tabernacle is proposed to be built, the respective costs of the plaintiffs’ residences, and the manner in which plaintiffs will be disturbed and annoyed by the holding of services in the tabernacle; an enumeration of all of which becomes unnecessary, as the petition will accompany this certificate.
“The petition was duly verified, and, when it was presented to the trial judge, an order was made appointing a day for its hearing, and directing that the defendants be cited to appear at that time and show cause why the relief prayed for should not be granted.
“Thereafter other resident citizens in the Floral Heights ¿ddition filed their verified plea of intervention, alleging that they also had established their residences in that addition, and joining with the plaintiffs in seeking the writ of injunction, and adopting the allegations contained in the plaintiffs’ petition.
“Defendants filed their verified demurrer, a general denial, and specifically denying that the erection and use of the proposed church edifice will cause the annoyance and disturbance alleged in plaintiffs’ petition.
“No evidence was introduced upon the hearing of the petition, although defendants admitted in open court that the 10-year restriction in the deed by the Floral Heights Realty Company, to the original purchaser of lots 11 and 12 against the use of those lots for any purpose except for residences, has not yet expired. Upon that admission and upon the pleadings filed, the trial judge entered an order granting the injunction in so far as it related to lots 11 and 12, and denying the injunction as to lots 9 and 10, and dismissing the suit as to those lots. From that portion of the order, refusing to grant the injunction as to lots 9 and 10, and dismissing the suit as to them, the plaintiffs and interveners have prosecuted this appeal.
“In view of the public importance of the issues involved and of the necessity of an authoritative determination thereof, we deem it. advisable to certify to your honorable court the question, viz. whether or not the trial judge erred in the ruling complained of by. appellants.”

The trial court did not err in refusing to grant the temporary writ of injunction prayed for.' This portion of the order was expressly put upon the ground that' the restriction contained in the title as to lots 9 and 10 had expired by its own terms — the restriction appearing in the deed under, which the appellees claim, and being “that • the. lots hereby conveyed shall not, within a period of 10 years from date, be used for any other than residence purposes.” There is no merit in appellants’ contention that this language, -under the circumstances, evidenced an intention for a perpetual restriction. The restriction obviously was limited to 10 years from date of the deed. The apparent purpose, if we are concerned with motive where the language is so plain, was to enforce such restriction for a time only sufficient to enable the development company to sell its holdings, or possibly it was due to the expectation that the growth of the city within that time might render such further restriction undesirable. At all events, the language is plain and certain, and the restriction relied upon having expired by its own terms, the court could not do otherwise than refuse any relief based thereon.

The court’s action in denying the temporary writ was also right, viewing the petition as complaining of the structure as a threatened nuisance. The rule in such case is well settled to the effect no injunction will be issued in advance of the structure unless it be certain the same will constitute a nuisance. It finds apt expression in a quotation contained in Dunn v. City of Austin, 77 Tex. 139, 11 S. W. 1125, as follows:

“Nor will the court interfere when the thing complained of is not in existence, but may be called into existence by threatened acts of the defendant in the exercise of bis lawful dominion over his property, and it is uncertain, dependent on the circumstances in the future, whether it will or not operate injuriously.”

That a church is not a nuisance per se would seem to be a self-evident proposition. For that reason also the trial court did not err in denying the temporary writ.

But the petition was not subject to a demurrer. A church building is as lawful as any other structure. It is not only lawful, but essential to our, Christian civilization, and, will be given the same protection of the law as is afforded the residence for the family, or the place for exercising the pursuit of one’s lawful business. It is not, however, above the law. Dike any other edifice or structure, however lawful in purpose and use ordinarily, it may become -unlawful. The place of its location, and the time and manner of its use, may be such, under the circumstances, as to constitute that interference with the rights of others as to become in law a nuisance, abatable as such. Whether such a condition has arisen is of course a question of fact, triable as any other fact issue, whe,re witnesses may be heard, and a verdict had.

The allegations of the petition which we have considered, because of the reference in the certificate, are broad enough to demand such a trial, and the court should not have dismissed-the plaintiffs’ case upon the hearing for á preliminary injunction as he appears to have done.

We are not called upon to express any views as to the applicability of the common law of nuisances to a case like this. The principles themselves are as virile as ever, but their application in a given case are necessarily affected by our changed conditions, due to a complex and advanced civilization. That use which will be enjoined as a nuisance is not every “hurt” which is inflicted upon another, but must be an unreasonable one under all the circumstances.

We think the question certified should be answered as indicated.

CURETON, O. J.

Opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
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