Estancias Dallas Corp. v. Shultz

Plaintiffs, Thad Schultz and wife, brought this suit asking that defendant, Estancias Dallas Corporation, be permanently enjoined from operating the air conditioning equipment and tower on the property next to plaintiffs' residence. The jury found: that the noise emitted solely from defendant's air conditioning equipment constitutes a nuisance; that the nuisance began May 1, 1969; that it is permanent; that the nuisance has been continuous since it began; that Mrs. Schultz has been damaged $9000 and Thad Schultz $1000, considering material personal discomfort, inconvenience, annoyance and impairment of health as the elements of damages. The jury failed to find that the nuisance proximately caused material personal discomfort, inconvenience, annoyance and impairment of health to either plaintiff. The jury also failed to find that there was any unreasonable delay by plaintiffs in calling the nuisance to the attention of the defendant.

We proceed to consider first the matter as to balancing the equities. Even though this matter has arisen many times, we have found little in-depth writing on the subject. The case cited most frequently in this state is Storey v. Central Hide & Rendering Co. The rule of law was clearly established in this case that even though a jury finds facts constituting a nuisance, it was held that there should be a balancing of equities in order to determine if an injunction should be granted. The Supreme Court then stated certain guidelines for the trial courts to follow in making such determinations by quoting as follows from 31 Tex.Jur. Sec. 35 Nuisances:


"'According to the doctrine of "comparative injury" or "balancing of equities" the court will consider the injury which may result to the defendant and the public by granting the injunction as well as the injury to be sustained by the complainant if the writ be denied. If the court finds that the injury to the complainant is slight in comparison to the injury caused the defendant and the public by enjoining the nuisance, relief will ordinarily be refused. It has been pointed out that the cases in which a nuisance is permitted to exist under this doctrine are based on the stern rule of necessity rather than on the right of the author of the nuisance to work a hurt, or injury to his neighbor. The necessity of others may compel the injured party to seek relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance.'

"'"Some one must suffer these inconveniences rather than that the public interest should suffer. * * * 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 on 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."'

"'On the other hand, an injunction may issue where the injury to the opposing party and the public is slight or disproportionate to the injury suffered by the complainant.'"

There is no point of error complaining of the definition of the term "nuisance" given by the trial court to the jury. That definition is as follows:

"You are instructed that by the term 'nuisance' as used in this Charge is meant any condition, brought about by one party in the use of his property, so unusual and excessive that it necessarily causes injury or damage or harm or inconvenience to another party in the use and enjoyment of his property, substantially, materially and unreasonably interfering with the latter's comfort and proper use and enjoyment of his property, taking into consideration the nature and use of the property of both parties and the character of community in which they are situated, and which condition would be substantially offensive, discomforting and annoying to persons of ordinary sensibilities, tastes and habits living in the locality where the premises are situated."

There is no specific mention in the judgment that the trial court balanced the equities. However, that question was raised by the pleadings, evidence was heard, and there is an implied finding that the trial court balanced the equities in favor of plaintiffs by entering the judgment granting the injunction. We do not find that the trial court abused its discretion in balancing the equities in favor of plaintiffs.

It is significant that the Supreme Court of Texas in the Storey case, supra, placed great emphasis upon public interest. Also, in all of the other cases cited above, the appellate courts in their opinions refer to the benefit to the public generally in permitting a nuisance to continue through the balancing of equities. We find little or no testimony in the record before us reflecting benefit to the public generally. There is no evidence that there is a shortage of apartments in the City of Houston and that the public would suffer by having no place to live.

Our record shows that this apartment complex was completed about March or April of 1969 with about 155 rentable apartments in eight buildings. The air conditioning unit complained of here served the entire complex. This unit is located at the back side of defendant's property, about five and one-half feet from plaintiffs' property line, about fifty-five feet from plaintiffs' back door, and about seventy feet from plaintiffs' bedroom. According to much of the testimony, the unit sounds like a jet airplane or helicopter. The plaintiffs testified: That this was a quiet neighborhood before these apartments were constructed. That they can no longer do any entertaining in their backyard because of the noise. That they cannot carry on a normal conversation in their home with all their doors and windows closed. That the noise interferes with their sleep at night. Several of the neighbors gave similar testimony.

Plaintiffs testified that the value of their land before was $25,000 and $10,000 after the noise began. One of the neighbors, a real estate broker, placed the value at $25,000 before and $12,500 after. A witness who qualified as an expert metallurgical consultant testified as to the results of tests made at various points as to the sound factors in decibels before and after defendant made changes in an effort to reduce the noise.

A witness testified: That he was the original owner of the apartments. That it cost about $80,000 to construct this air conditioning system and that separate units for the eight buildings would have cost $40,000 more. That it would now cost $150,000 to $200,000 to change to that system. That these apartments could not be rented without air conditioning.

Applying the rules of law set forth above in the quotation from the Storey case, the nuisance in this case will not be permitted to exist "'based on the stern rule of necessity rather than on the right of the author of the nuisance to work a hurt, or injury to his neighbor.'" There is not evidence before us to indicate the "'necessity of others . . . [compels] the injured party to seek relief by way of an action at law for damages rather than by a suit in equity to abate the nuisance.'" Furthermore, although plaintiffs had a count in their pleading seeking damages, in response to a motion made by defendant, the court forced plaintiffs to elect at the close of their evidence. Thus, defendant's own trial tactics prevented the development of a full record upon which we could predicate the doctrine of balancing the equities.

Plaintiffs were not required to recover damages for a temporary nuisance, that is, for the time when the nuisance began until the date of the trial, in order to secure a permanent injunction. They were entitled to such injunction based upon the affirmative answers given by the jury as set out above. The failure on the part of the jury to give an affirmative answer to the proximate cause issues related to the damage issues or to a temporary nuisance and did not alter the situation.

Affirmed.