Brown v. Gulf Television Co.

Mr. Justice Smith

dissenting.

I respectfully file this dissent.

The writ of error was granted in this case, so far as the writer is concerned, because the opinion of the Court of Civil Appeals in the present case was in conflict with the opinion of the Fort Worth Court of Civil Appeals in Rogers v. Scaling, 285 S.W. 2d 259 , and, further, because it was my opinion that the present case had been incorrectly decided. Before a writ should be granted, this Court must be at least of the tentative view: (1) that a conflict exists, and (2) that the previous case correctly announces the law, otherwise the writ should not be granted.

Coming now directly to the question involved: An examination of the transcript containing plaintiff’s petition filed in the trial court, and his controverting affidavit to respondent’s plea of privilege, renders it impossible for me to reach any other conclusion than that this suit is one for the recovery of damages within the purview of Subdiv. 14 of Article 1995, V.A.T.S., which reads as follows:

“Suits for the recovery of lands or damages thereto, or to remove incumbrances from the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.’

In my opinion, the specific provisions of the above quoted Subdivision of Article 1995, V.A.T.S. take precedence over the provisions of Article 4656. The latter article, it will be noted, is couched in general terms, while Subdiv. 14, supra, is specific and mandatory in its terms in providing that the venue of *613 suits for the recovery of lands or damages thereto, must be brought in the county in which the land, or part thereof, may lie. Language can have no clearer meaning than this. In our case, the plaintiff has alleged that he is the owner of certain property in Brazoria County, Texas and after specifically describing such property, he makes this further pertinent allegation:

“The said tract of land above described by virtue of its location was, in 1947, and still is, ideally adapted for use as an airport, being sufficiently near to metropolitan areas as to be accesso-ble, and, until the construction of the tower hereinafter described, being situated sufficiently distant from tall structures as to reduce to a minimum hazards to planes using it as an airport. Because of such fact the Plaintiff, in about the year 1947, began to use the said tract of land as an airport to which use the land has been applied continuously on down through the present date. In the Plaintiff’s application of the use of his said tract of land as an airport, he can constructed costly improvements thereon consisting of runways, hangars and other facilities necessary to the maintenance of an airport. In constructing such facilities Plaintiff has incurred reasonable and necessary costs in the approximate amount of One Hundred Fifty Thous- and Dollars and the facilities so constructed by him for such purposes have a reasonable value of approximately One Hundred Fifty Thousand Dollars. The said facilities so constructed by the Plaintiff upon his said tract of land are of such nature as to be valueless except as facilities in the operation of an airport.” (Emphasis added).

Following the above allegation, the plaintiff-petitioner alleged that the defendant-respondent had, over his nrotest, constructed a television antenna at a point some 3.6 miles from his airport and at a point almost in line with his runway, which antenna was approximately 1200 feet in height; that such act of the defendant-respondent constituted an “airport hazard” * * *; that the construction of the antenna reduced the size of the area available for landing and taking off of aircraft; and that the tower constituted a nuisance in fact, as well as a statutory nuisance as defined by Article 46e-2 of Vernon’s Civil Statutes; that the construction and maintenance of such nuisance was a direct and proximate cause of an irreparable injury to plaintiff’s land. The plaintiff-petitioner further alleged that because of such acts and conduct the value of his land for airport purposes, as well as the value of improvements thereon, had been destroyed to plaintiff’s damage in the sum of $250,000.00.

*614 It is true that plaintiff prayed for a mandatory injunction, and, in the alternative, for the recovery of his damages and for general relief. Nevertheless, the fact that a recovery for damages was pleaded alternatively does not change in the least the cause fo action as pleaded. Texas Development Co. v. Hodges, Texas Civ. App., 237 S.W. 2d 436 , no writ history. Under our system of pleadings, it is proper to plead in the alternative. In view of the record, pleadings, and the evidence on the hearing of the plea of privilege, it is my opinion that the present suit is basically and fundamentally a suit for the recovery of damages and that Article 4656, supra, has no application.

The facts in the case of Rogers v. Scaling, supra, are almost identical with the facts in the case at bar. In that case, it was held that the court had venue under Subdiv. 14, supra, and not under Article 4656. S. J. Rogers et al. filed their plea of privilege to be sued in Jefferson County. The court overruled the plea of privilege and that judgment was affirmed by the Fort Worth Court of Civil Appeals. The court held that damages to land as contemplated by Subdiv. 14, supra, meant an injury to possession or to the freehold or estate. Rogers et al. applied to this Court for a writ of mandamus and the application was overruled with the notation “See Chapter 424, p. 1026, Acts of 1953, 53rd Legislature.” I have examined the petition for writ of mandamus in the Rogers case and its principal point, as set out in a certified question, is:

“Do the allegation in plaintiff’s petition show venue in Tar-rant County under Subdivision 14 of' Article 1995 as against the defendants S. J. Rogers and N. J. Rogers?”

Following the question, the petitioner proceeds to present his argument on the legal question involved and cites several cases which he contended were in conflict or supported his argument which was in effect the true character of Scaling’s cause of action was not one for the recovery of damages to land, but to the contrary was a cause of action wherein his only damage was loss of profits because of his inability to lease the premises. Just here, I would like to interpose the thought that the present case under the pleadings is even a stronger case than the Rogers case, and it is more consistent to hold that this case comes under Subdivision 14 than the Rogers case. This question cannot, under any circumstances, be determined by looking to the ultimate judgment which was entered in the Rogers case. The trial court must determine the question at the very inception before a trial is had on the merits and is confined in such determination to *615 the pleadings. This rule is well settled. See Gilbert v. Gilbert, Texas Civ. App., 195 S.W. 2d 930 , affirmed, 145 Texas 114 , 195 S.W. 2d 936 .

The petitioner-plaintiff has not made a choice between legal and equitable remedies, but, to the contrary he has pleaded both remedies. In the event it should be held in the trial of the case on its merits that the petitioner-plaintiff has sustained damages to his land, he would be entitled to judgment therefor, regardless of the action of the court on the plea for injunction. It cannot be said, therefore, that the action herein for damages is merely incidental to the issue of whether or not the petitioner-plaintiff should be held entitled to a permanent injunction.

In the Rogers case, supra, the court held that the plaintiff had discharged his burden by proving the only two venus facts required, namely, (1) the nature of the suit, that is, that it was for the recovery of damages to land; (2) the location of the land; and (3) whether it is a case for the recovery of damages to land was a question of law to be determined by the court from the allegations of the plaintiff’s petition.

The Fort Worth Court of Civil Appeals, in deciding the Rogers case, supra, was no doubt persuaded to do so by the holding in the case of Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., (decided by the Commission of Appeals in 1925). In that case, on rehearing, the Commission expressly stated that the original opinion was written under the impression that the suit was purely a suit for injunction, but, on motion for rehearing, it was found that the petition contained all the necessary allegations for suit in trespass to try title and that it was a prayer for general relief. The same holding was also made in the cases of Guillot v. Godchaux, Texas Civ. App., 73 S.W. 2d 924 , and Lindley v. Easley, Texas Civ. App., 59 S.W. 2d 927, 929 . In each of the above cases Article 4653 (now Article 4656) was held inapplicable.

The legislature has specifically enacted a mandatory statute (Subdivision 14) directing that all suits for damages to lands must be brought in the county where the land is situated. This statute definitely manifests that it was the intention of the legislature that the general statute, Article 4656, supra, having for its subject matter the jurisdiction for trial of writs of injunction has no application in a suit as this. By enacting Sub-div. 14, supra, the legislature no doubt, intended for such act to *616 take precedence over Article 4656, in a case such as we have here where an injunction is sought to obtain relief from a nuisance created by another party causing damage to land and especially when the pleadings and the evidence shows that the cause of action is one stemming from a nuisance which has caused damages to the land.

This Court cannot assume that the trial court will order the antenna removed.

The majority opinion cites, in supporting of its holding, that Article 4656 is controlling in the cases of O’Connor v. Shannon, Texas Civ. App. 30 S.W. 1096 , app. wr. error dismissed; Scott v. Noakes, Texas Civ. App., 277 S.W. 735 , app. wr. error dismissed; Fernandez v. Shacklett, Texas Civ. App., 1 S.W. 2d 675 ; Lyday v. Ledbetter, Texas Civ. App., 24 S.W. 2d 68 ; Bowman v. Muncy, Texas Civ. App., 197 S.W. 2d 866 . The nature and character of the suit in each of those cases is entirely different from that as pleaded in the present suit and I respectfully decline to recognize them as having any application to the case at bar.

In my opinion, the judgment of the Court of Civil Appeals should be reversed and venue held to be in Brazoria County, Texas, as held by the trial court.

Opinion delivered November 6, 1957.