text:
    HANKINS v. DILLEY et al.
    (No. 1392.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1918.
    Rehearing Denied Nov. 27, 1918.)
    1. Boundabies <®&wkey;j2—-Pleading and Evidence—Variance.
    In a boundary dispute, where petition'referred to plaintiff’s survey as being 1,900 varas square, but also distinctly referred to lines evidenced by iron pipo corners, that a slight excess over 1,000 varas was shown to exist between the corners was not a fatal variance.

      2. Appeal and Eirror <&wkey;930(4) — General V erdiot — Presumptions.
    In a boundary dispute, wliere court instructed that if it should be found that several lines were located by a surveyor, with reference to certain mounds, then the verdict should be for plaintiff, “otherwise, the finding should be for the defendant,” and the jury returned a general verdict for plaintiff, there is no presumption that issues not submitted were resolved by the court in plaintiff’s favor.
    3. Boundaries <&wkey;>5 — Artificial Marks— Surveys.
    Objects denoting the footsteps of the surveyor cannot be given effect in the absence of calls therefor in the field notes.
    4. Appeal and Error <&wkey;856(l) — Improper Theories — Affirmance.
    Where evidence did not support finding on which a judgment was based, it will be affirmed, where the record conclusively shows, on other theories, that the judgment rendered was the proper judgment.
    5. Boundaries <&wkey;47(2) — Estoppel.
    Where a landowner erected a fence and, in the presence of a prospective purchaser of adjoining land, stated that he would join such prospective purchaser in building a substantial fence, where there was an opening in the fence, he was estopped as against such purchaser from denying that such fence was on the boundary.
    6. Trespass to Try Title <@=>34 — Pleading —Disclaimers—Cross-Actions.
    Where defendant in trespass to try title pleaded not guilty, a cross-action by him would not bring him within the terms under Rev. St. 1911, art. 7752, relating to disclaimer; allegations of the cross-petition not being a part of his answer proper.
    7. Adverse Possession &wkey;>17 — Sufficiency of Possession.
    The mere fencing of land for more than ten years does not show use or occupancy sufficient to give title.
    8. Trespass to Try Title <&wkey;38(l) — Cross-Actions — Burden of Proof.
    In trespass to try title, where a defendant brings a cross-action against plaintiff and another defendant, he must affirmatively show title to land in the possession of second defendant.
    9. Boundaries <&wkey;7 — Surveys—Monument.
    Where a surveyor ran a line and put up a monument at a corner, the monument belongs to the system of surveys made by the surveyor.
    Appeal from District Court, Potter County; Hugh D. Umphres, Judge.
    Suit by E. A. Dilley against J. R. Hankins and others. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    H. C. Randolph, of Plainview, and Thos. E. Turner, of Amarillo, for appellant.
    Culton & Taylor, of Tulia, and Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellee Dilley.
    Mathes & Williams, of Plainview, lor ap-pellee Shook.
   BOYCE, J.

This suit was brought by E. A. Dilley agaihst J. R. Hankins and others to determine the boundaries of survey 17, block M-11, A. B. & M., in Swisher county; plaintiff being the owner of said section 17, and the defendants being the owners of the adjoining surveys, whose lines might be affected by the location of the boundary lines of survey 17. Appellant Hankins owned section 24 in said block, situated directly south of 17, and the judgment of the court below established the boundary line between said surveys 17 and 24, according to a survey of said lines made by Surveyor Hutchinson; the corners being evidenced by iron pipes, and said survey being referred to in the record as the “Hutchinson Iron Pipe Survey.” Han-kins has alone appealed from the judgment of the court, and it will not be necessary to refer to the other defendants or questions raised by them, except as to the defendant Shook, who will be mentioned hereafter.

The plaintiff’s petition sufficiently shows, we think, that he was claiming that the boundary line between him and the defendant Hankins should be located according to the Hutchinson iron pipe survey and supports the judgment in this respect. While plaintiff’s survey is referred to in the petition as being 1,900 varas square, yet the petition refers distinctly to the lines evidenced by the iron pipe corners put in by Hutchinson, and claims such line as the boundary between sections 17 and 24. The slight excess over 1,900 varas shown to exist between these corners is not, we think, a fatal variance. We therefore overrule the first assignment.

The Hutchinson iron pipe survey was based on certain earth mounds taken by the surveyor Hutchinson to be the corners of certain surveys along the east boundary line of M-8, and the west line of M-9, and W-1, and the court instructed the jury that if it should be found that the several lines in said blocks were located by the original surveyor with reference to said mounds, then their verdict should be for the plaintiff; otherwise, the finding should be for the defendant. It thus appears that the only issue submitted to the jury, upon which a finding in plaintiff’s favor was authorized, was as to whether these mounds at the southwest corner of block W-1, and those north along the line of the old J. A. fence were original corners intended to be called for in the field notes of the several surveys in block M-8, M-9, and W-1. The charge called for a general verdict and was in effect a ruling against the plaintiff on his plea of estoppel or claim based on any other theory than that submitted, so that there could be no presumption that the issues not submitted were resolved by the court in plaintiff’s favor in support of the judgment, as might be done in eases submitted on special issues where proper exception is not taken to the failure of the court to submit an issue made by the pleading and evidence. The only question, therefore, to be considered in deciding whether the second assignment is well taken, is whether the evidence is sufficient to justify the conclusion that the corners northward from the southwest corner of W-l were original corners intended to be called for in the field notes of the several surveys in block M-8, M-9, and W-1; ánd, if this inquiry should be determined in appellant’s favor, then, whether the record conclusively establishes that the judgment was rightly entered for plaintiff on any other theory.

If the testimony of Summerfield is to be believed, these corners could not have been put in on the original survey except on the theory that McClelland and the German surveyor, after leaving Summerfield at the monument called for at the northwest corner of survey 346, block M-6, ran east some 23 miles and north some 19 miles, and then back past this north run, and met Summerfield’s party in about three days after the separation putting in these corners on this run. Sum-merfield states that it was thought that some mistake had been made by this party during this separation, and their work was -not used except for about 10 miles east from the northwest corner of said section 346, which would not be anywhere near the corners relied on by Hutchinson and referred to in the court’s charge. The corners found by Hutchinson in 1890, from which he located his iron pipe corners, consisted of a line of earth mounds set at each mile, from the southwest corner of block W-l northward for some 15 miles or more. These were the same mounds evidently referred to in the field notes of McClelland’s run made in 1884. In the field notes of McClelland’s run, the mounds are described as having rocks or stakes set in them and the mound at the southwest corner of block W-l is described as a “large earth mound with cedar stake and buffalo bones on top, eighty varas west of lake.” Now the field notes of surveys in blocks W-l, M-8, and M-9, of which these earth mounds were taken by Hutchinson to be the corners, simply call for mounds at such corners, with no other particular description. The record shows that the field notes of the several hundreds of surveys located in blocks M-6, M-8, M-9, M-ll, and W-l, practically all call for a mound at every corner; if the call for a mound really meant a corner established on the ground, Swisher, Castro, and Randall counties would be full of original corners, and it is significant that the record does not disclose any original corners claimed to have been found on such descriptions, except along the line run by McClelland.

There is evidence in the record which is undisputed that surveyors in making and reading field notes in this country use the word “mound” simply to denote a point, indicating no established corner or actual survey, and the only reasonable conclusion to be drawn from the record is that “mound,” without further particular description, was used by the surveyors and signers' of the field notes of the surveys in block M-6, M-8, M-9, M-ll, and W-l, in this sense. If the earth mounds with rocks, stakes, and buffalo bones, described by McClelland, were original corners intended to be called for in field notes of the. surveys in block M-8, M-9, and W-l, it is reasonable to conclude that the surveyor would have given some particular description thereof to denote that the call was for something actually on the ground, and thus distinguish it from the hundreds of calls made for mounds in the field notes of other surveys in these blocks where only a point was meant. McClelland does not describe the corners as original corners; he, or some one else locating the line for the building of the J. A. fence, may have put in these corners. But even if the testimony were sufficient to justify the conclusion that this line of mounds was put in by the surveying party which separated from Summerfield, or by some one else within the knowledge of the writers of the field notes of said surveys in blocks M-8, M-9, and W-l, we doubt whether they could be given any effect, for under the circumstances the call for a “mound” could hardly be said to denote a call for these corners, and it is well settled that objects denoting the footsteps of a surveyor cannot be given effect in the absence of calls therefor in the field notes. Hamilton v. Blackburn, 43 Tex. Civ. App. 153, 95 S. W. 1094, and authorities; Goldman v. Hadley, 122 S. W. 282; Holdsworth v. Gates, 50 Tex. Civ. App. 347, 110 S. W. 537.

These conclusions would result in a reversal of the case unless, as we have stated, the record conclusively shows that the judgment rendered was the'proper judgment, although not sustained by the particular finding on which it was based. Dubinski Electric Works v. Lang Electric Co., 111 S. W. 169; Johnston v. Kleinsmith, 33 Tex. Civ. App. 236, 77 S. W. 36. Appellee claims that the judgment can be so sustained on two different theories, to wit, a location of the line by estoppel, and the true location of the line from an undisputed original corner in block M-6.

On the issue of estoppel, which was duly pleaded by plaintiff Dilley, it appears that the defendant Hankins had, in the year 1902, erected. a fence on the north line of section 24, as determined by the Hutchinson pipe line comers, not knowing at that time that there was any question as to the correctness of this location. Prior to its purchase by plaintiff, Dilley, section 17 had also been fenced on the line of the Hutchinson survey, and the fence put up by Hankins on the supposed north line of section 24 was used as a common fence; one of the owners of section 24 adding some wire thereto. Hankins was, at the time of Dilley’s purchase, leasing some land out of the southwest corner of section 17, and paying rent on part of said land as a part of 17, which he claimed in this suit as belonging to section 24, and, prior to the time Dilley purchased, had taken down the east end of the fence between sections 17 and 24. These were the conditions when Dilley came to look at section. 17 with a view to purchasing it. He had no information of any claim that there was any question as to any boundaries and thought the land was completely fenced except where the fence had been taken away from the east end of the south line. Upon this inspection trip he went to see Hankins, and the question of this fence was discussed, and Hankins himself testified that he at that time recognized the owner of section 17 as the owner of at least a part of said fence, and that he then “told Mr. Dilley that if he purchased the land we would put a good partnership fence on the line. I did at that time claim that a part of my land was in Dilley’s inclosure, or at least in the inclosure of survey 17, according to the Hutchinson pipe corners. I did not tell Dilley at that time of that claim.” Dilley testified, and there is nothing in the record to discredit his statement, that in purchasing the land he relied on these facts and he is corroborated by Hankins’ own testimony, to which we have referred. Hankins continued to pay rent on the land as above referred to during 1913.

These facts, we think, are sufficient to establish the line on which the fence was built as a boundary by estoppel. These facts go further than presenting a case of mere silence ; the erection by Hankins of the fence on the line marked by the Hutchinson iron pipes was equivalent to a representation that this was the boundary line between said surveys, and when relied upon by one purchasing the adjoining survey, with no notice of a different claim, ought to create an estoppel. Hefner v. Downing, 57 Tex. 576; Lagow v. Glover, 77 Tex. 448, 14 S. W. 143; Anderson v. Jackson, 13 S. W. 30; Schiele v. Kimball, 150 S. W. 303; 9 C. J. p. 240, § 188; 4 R. C. L. p. 131, § 72; 10 R. C. L. p. 692, § 21. In addition to the mute representations to be inferred from the building of this fence itself are the representations to be fairly implied from the actual agreement in relation to restoring the fence between sections 17 and 24, in the event section 17 should be purchased by Dilley. Dilley’s testimony is to the effect that Hankins, in this conversation, stated, that “whenever I wanted the fence in there he would join me and put a substantial fence back.” And while, according to Dilley, the agreement was to put a partnership fence on the “line,” no other reasonable conclusion can be drawn from the facts than that Dilley, at least and within the knowledge of Han-kins, had in mind a repair of the fence already existing, and a rebuilding of the fence where it had been taken out. Under these circumstances, good faith and fair dealing would require that Hankins inform Dilley of his claim to land north of the fence. Not then having made such claim, we think he should be estopped from now asserting it.

We would not feel justified in affirming the judgment as to Dilley on the theory of location from what is known in the record as the Dameron corner. We think under the evidence that the Dameron corner should be recognized in a proper location of these lines; whether it alone should control, or whether the line should be located, taking into connection both the Dameron corner and the established comer at the southwest corner of section 208, block 6, I. & G. N. Ry. Co. in Randall county, we need not decide. According to either location, the lines would be located far to the south of the Hutchinson pipe location and far to the west on one theory and slightly to the west on the other. So that the judgment for plaintiff covers some land in the east corner of the recovery that would not belong to section 17, on either theory of location from the Dameron corner. As the plaintiff sued in trespass to try title, and the defendant pleaded not guilty and was in actual possession of this land, the plaintiff could not therefore properly have judgment against Hankins for it. The cross-action by Hankins would not bring him within the terms of article 7752 and the decisions applying it, as the allegations of the cross-petition are not to be regarded as any part of his answer proper. Lewis v. Crouch, 85 S. W. 1010.

The ease as to the defendant B. F. Shook is different, however, and the judgment between him and Hankins can be affirmed, we think, on the theory of the Dameron location. Shook was the owner of section 16, located west of 17, and was a defendant in the suit brought by Dilley. He also was claiming under the Hutchinson iron pipe location, and the court gave him a peremptory instruction on his plea of limitations. The plaintiff, Dilley, does not complain of this instruction, but appellant Han-kins filed a cross-action in which he set out specifically that he was an owner of 215 acres of land, a part of section 24, and sought a recovery thereof against the plaintiff and his codefendants, and, as we understand the record, a small part of land off the west end of this tract so claimed in the cross-action lies within the boundaries of section 16, as located by the Hutchinson iron pipe corners; so that, if Hankins had shown himself entitled to recover this 215 acres and the evidence did not warrant the finding on limitations, appellant might complain. We are inclined to the opinion that the defendant Shook failed to make out his ease under his plea of limitations, in that, while the evidence may have warranted the conclusion that the land had been fenced for more than 10 years, it did not show any use or occupancy thereof other than the mere fencing during such time. But as to Shook, appellant Hankins occupied the position of plaintiff, and, if he did not affirmatively show title to the 215 acres of land claimed in his cross-petition, he could not recover. Plaintiff’s theory was that the surveys in block M-ll should be built up alone by course and distance from corners along the south line of block 6,1. & G. N. Ry. Co. in Randall county, called for by the field notes of survey M-9. Tlie field notes of the surveys in M-S, M-9, and M — 11, all call to tie to each other.- But block Mr-11 also calls for corners of surveys in block M-6, and the testimony shows that all these blocks were built up from a line run by Summerfield, during which run he put in the monument known as the Dameron corner at the northwest corner of section 346, block M-6. This corner would therefore belong to this system of surveys. McCormack v. Crawford, 181 S. W. 485. And there is nothing in the record that would justify us in disregarding this corner entirely and building up block M-ll alone from the corners in block 6 of the I. & G. N. survey, which apparently belongs to a different system of surveys. Under the facts disclosed by the record, the Dameron corner would at least have equal importance with the Randall county corner in the location of these surveys. Location on either the Dameron corner or the Dameron corner in connection with the corners of block 6 of the I. & G. N. surveys would locate section 24 entirely to the south of any land awarded Shook on his plea of limitations, and, since plaintiff did not sustain any theory on which he could recover anything from Shook on his cross-petition, we think the judgment as to Shook should also be affirmed.

We have not attempted to set out the facts in detail, but our purpose has been only to make such statement as that our holding may ■ be understood by the parties in light of the record.

Affirmed.
      <Bs»ror other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    TEXAS REFINING CO. v. SARTAIN et al.
    (No. 8000.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 19, 1918.
    Rehearing Denied Nov. 30, 1918.)
    1. Trial <&wkey;295(5) — Instructions — Consideration as A Whole.
    The charge as a whole, predicating plaintiff’s right to recover on operation of defendant’s ‘mill in such manner as to constitute a nuisance, adding to defendant’s requested charge that erection of the building gave no cause of action, the words, “unless in the operation thereof a nuisance was created,” was not misleading.
    2. Trial &wkey;250 — Instructions — Requests — Conformity to Issues.
    Defendant’s requested charge that it was not required to operate its plant to suit the extraordinary habits, tastes, or sensibilities of others was properly refused, claim to the contrary not being made by plaintiff’s pleading or evidence.
    3. Nuisance <&wkey;64 — Conduct of Lawful Business.
    That a business is lawful, and so does not constitute a nuisance por se, does not prevent recovery, where it is conducted unlawfully, or so as to constitute a nuisance, damaging neighbors.
    4. Trial <&wkey;260(l) — Instructions — Requests Covered.
    It is enough that the substance of a requested charge has been given.
    5. Trial <&wkey;256(S) — Instructions — Request.
    Where defendant’s requested charge does not apply the law to the facts developed, but is merely that the conditions as to annoying per-" sons must have been worse after than before the addition to defendant’s mill, and the court so charges as to noises, defendant, if desiring such a charge as to odors, and there is evidence that they were no worse, should specifically request it.
    6. Trial <&wkey;295(5) — Instructions — Consideration as a Whole.
    General charge having said that plaintiffs could recover only if operation of defendant’s mill caused this or that to be conveyed to plaintiffs’ premises, etc., instruction, in answer to inquiry of jury, that defendant had right to operate its plant, but if in doing so it provided a condition materially disturbing and annoying persons of ordinary sensibilities, etc., it would be liable, could not have been considered authority for judgment for annoyance suffered by plaintiffs elsewhere than in their home.
    7. Witnesses <&wkey;240(4) — Leading Question.
    The question, “I want you to tell the jury * * * how that [the noise testified to] affected you,” is not leading, it not suggesting the answer.
    8. Witnesses &wkey;237(4) — Questions Assuming Facts.
    Prior testimony of witness fairly tending to support claim of noises coming from defendant’s mill, question as to how noise testified to affected witness is not open to objection of assuming existence of the noise.
    9. Trial <&wkey;260(10) — Instructions — Requests — Equivalents.
    Instruction that if plaintiff, at time of trial, was in bad condition, and this was due to former illness, damages could not be allowed on account of such former illness, is equivalent to defendant’s requested charge, that, if plaintiff’s then condition was due to former illness, she could recover nothing on account of her health.
    10. Trial <&wkey;260(3) — Instructions — Request Covered.
    Requested instruction as to matters that must be shown by preponderance of evidence to authorize recovery on the theory of operation of defendant’s mill being a nuisance causing plaintiff’s ill health, held, covered by general charge.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by George Sartain and another against the Texas Refining Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Clark & Sweeton, of Greenville, for appellant.
    Evans & Shields and Neyland & Neyland, all of Greenville, for appellees.
   RASBURY, J.

Appellees sued appellant for damages to their property and health alleged to have resulted from the operation of machinery connected with appellant’s cotton seed oil mill in buildings adjacent to the home of appellees. The machinery was alleged to consist of cotton and cotton seed conveyers, cotton gins, cotton seed crushers and ¡trailers, suction pipes, fans, and blowers used in cleaning cotton and cotton seed, the operation of wliicli, it was further alleged, produced loud and unusual noises, and discharged into the air quantities of dust, greasy lint, trash, offensive odors, and poisonous fumes, etc., which in turn were cast upon appellees’ home, penetrated therein, settling in large quantities1 upon their ^furniture; clothing, and into the water they were compelled to drink and the food they ate, and lodged in their eyes and respiratory organs. As result of such conditions it was alleged that appellees’ residence had been depreciated in its market value, Mrs. Sartain injured in health, and George Sartain injured by reason of diminished earning capacity, and for which appropriate compensation was sought.

Appellant, after exceptions, made issue on the facts pleaded by appellees, and specially averred certain affirmative defenses unnecessary to detail. There was jury trial, and general verdict for appellees for $1,400, followed by like judgment, from which this appeal is prosecuted.

The issues presented on appeal do not require a statement of the facts deducible from' the evidence adduced by the parties; nor is there any claim that the evidence will not support the verdict of the jury.

The first issue presented by appellant arises upon the court’s general charge and the refusal of the court to allow in lieu thereof special charge requested by appellant. The special charge, in substance, informed the jury that appellant had the right to erect upon its land the buildings it did erect, and that the erection of the buildings conferred no right of action upon appellees, though they suffered damages as result thereof; The court’s charge was identical with the special charge, save that it contained the qualifying clause, “unless in the operation' thereof a nuisance, as explained in the second and third paragraphs of this charge, was created.” The contention of appellant is that appellees would have no cause of action against it merely because of the erection of lawful buildings upon its land, even though appellees were actually damaged thereby, but that the court, by the qualification of its general charge, authorized a recovery in that' respect. The rule in such cases, in its entirety, is that the owner generally has the right to erect upon his lands any lawful structures and put them to all reasonable uses. If the use to which the buildings are put seriously or materially interferes with another in the comfortable and peaceful' enjoyment of his home, or impairs the value of. the same, the former is liable in damages for any sum shown to have proximately resulted therefrom, provided the use to which such buildings are put constitutes in law a nuisance; that is to say, produces a condition which would disturb and annoy persons of ordinary sensibilities and of ordinary tastes and habits. Sherman Gas & Elec. Co. v. Belden, 103 Tex. 59, 123 S. W. 119, 27 L. R. A. (N. S.) 237; Davis v. Joiner, 140 S. W. 252. The pleading of appellees, and the evidence adduced in support thereof, presented a case witidn the rule stated. The court in the first paragraph of its general charge told the jury, in substance, that the suit was for damages alleged to have been caused by appellant in the operation of its cotton seed oil mill in such manner as to create a nuisance, or materially disturb or annoy persons of ordinary sensibilities and of ordinary tastes and habits. By the second paragraph of the charge the jury was told that the proximate cause of the injury must have resulted, without new or intervening cause, from the operation of defendant’s mill. The third paragraph of the charge requires the jury to find from the evidence that the precise injuries complained of by appellees resulted from the operation of appellant’s mill. The fourth paragraph advises the jury that it must appear from a preponderance of the evidence that the operation of the additions and improvements constructed and added to appellant’s plant produced the results complained of. The sixth paragraph is the one attacked. The seventh, which gives the measure of appellees’ damage, bases the recovery from the time that appellant commenced the operation of its plant as charged by appellees. The reference to the charge as a whole is to demonstrate that the jury could not have been misled by the language used in the sixth paragraph of the court’s general charge. The pleading, the evidence, and every portion of the court’s charge, save the sixth paragraph, has reference to the op-' eration of the plant, and the palpably inadvertent reference by the court to the operation of the buildings could not, in our opinion, mislead the jury into allowing damages for the mere erection thereof. However, even a literal construction of the language would not, in our opinion, support the claim that it permits the allowance of damages for the existence of the buildings. If we close our eyes to all'portions of the charge save the sixth paragraph, and construe it literally, it means precisely that no damages for the presence of the buildings are recoverable unless in the operation of the same a condition constituting a nuisance was produced. Buildings cannot, in ordinary meaning, be operated, and as a consequence the qualification was, when applied to the facts of the case, meaningless, and was presumably disregarded by the jury. If the jury attached other than a literal meaning to the word, then it is quite certain that they did it in the light of the issues presented by the pleading and the evidence, and concluded that the court had reference to the machinery therein or the use to which the buildings were put.

For the reasons stated we are constrained to hold that the action complained of did not constitute reversible error.

In the second issue presented complaint is made of the refusal of the court to allow special charges 4 and 5, requested by appellant Special charge 4, in substance, informed the jury that appellant had the right in law to make such reasonable use of its property as it saw fit, and was not required to operate its plant to suit the extraordinary habits, tastes, or sensibilities of others. Special charge 5 informed the jury that an oil mill was a lawful and beneficial commercial enterprise, which appellant had the lawful right to conduef and operate, and damages would not accrue from its mere construction and operation. We conclude the charges were properly refused. As relates to charge 4, there was no recovery sought on the ground that the cotton seed mill was conducted in a manner objectionable to appellees because of their extraordinary habits, tastes, or sensibilities. To have so charged the jury would have introduced into the case an issue not made by the pleadings or raised by the evidence. As relates to charge 5, the suit was not based upon any claim that appellant’s business was unlawful and hence constituted a nuisance per se. The fact that appellant’s business was lawful could not defeat or control appellees’ right to recover if it was unlawfully conducted. “The inherent lawfulness of the act or use or business complained of is not the sole test. * * * Any business, however lawful in itself, which causes annoyance to those residing in the neighborhood, materially interfering with the or-, dinary physical comfort of human life, may be adjudged a nuisance. So an act or business which is lawful in itself may be a nuisance where it is done or conducted in a place where it necessarily tends to the damage of another’s property. * * * ” 29 Cyc. 1160. Appellees’ ease was not based upon any claim that appellant’s business was unlawful, and hence a nuisance per se; but that the business, though lawful, was conducted in an unlawful manner or so as to create a nuisance. However, the court did, in response to oral inquiry from the jury on the precise question, instruct them in writing that appellant “has and had the legal right to operate said plant,” followed by the qualification that if in the operation of the plant a nuisance was created, and appel-lees damaged thereby, appellant would be liable in damages, but that there could be no recovery for noises, dust, lint, etc., unless it produced a condition which would materially disturb and annoy persons of ordinary sensibilities and ordinary tastes and habits.

Among other defenses of the appellant was the claim that the conditions surrounding appellees’ home prior to the construction and operation of its mill was as bad or worse than those created by the latter. Evidence adduced by appellant would have sustained such a finding by the jury. On presentation of the court’s charge to counsel for appellant objection was made to the first paragraph of the charge on the ground that it incorrectly defined nuisance as applied to the facts of the case in that it failed to present the circumstances and conditions surrounding appellees’ horqe at the time the additions complained of were constructed. Counsel also presented for allowance a special charge advising the jury, in substance, that, in order for the additions complained of to create a nuisance, they must be worse than those existing prior to their construction, which was refused. However, on that issue the court, in the fifth paragraph of the general charge, informed the jury that, if they believed that the noises existing in the vicinity of appellees’ home in law created a nuisance, defining same, and further believed that the noises were created in the main by Turner’s wood saw, the Green-ville Oil Mill, the railway yards, the flour mills, etc., and that the operation of appellant’s additions to its plant did not increase said noises in such way as to materially affect persons of ordinary sensibilities and ordinary tastes or habits, surrounded by noises existing before the additions to appellant’s plant were constructed, then appellees could not recover on the issue of noises. The foregoing, in our opinion, affirmatively and sufficiently presented the issue of the conditions existing prior to the construction of appellant’s additions to its mill, so far as relates to noises. If, as appellant contends, the evidence shows that the offensive odors were as bad formerly, then it should have requested the court by special charge to apply that fact. The special charge requested by appellant and refused by the court, and just referred to, does not attempt to apply the facts developed at trial, but is a general charge, informing the jury that the conditions subsequent to the construction of appellant’s additions to its mill must be worse than prior thereto before appellees could recover — so materially worse than former conditions as to materially annoy persons of ordinary tastes and sensibilities. However, we have examined the evidence cited by appellant, and find it does not support the contention that the conditions complained of by appellees, save as to noises, were as bad before the construction of appellant’s additions as they were subsequently. It does appear from the testimony of the witness Turner that prior to the construction of appellant’s additions there were stagnant pools of water in that vicinity, a mule stable within 30 feet of appellees’ home, where there were as many as 12 mules being fed on cotton seed meal and hulls in deep mud, which rendered the vicinity very disagreeable. This witness testified that subsequently the stable was removed, and a machine shop conducted on the same location for a short time, which produced considerable noise. Appellees’ complaint was that “the additions to appellant’s plant produced loud and unusual noises, and discharged into the air quantities of dust, greasy lint, trash, offensive odors, and poisonous fumes,” etc. As we have shown, the issue of noises was submitted. On tbe other issues just stated tbe witness did not testify, and we think it can be fairly said that tbe evidence failed to disclose that they existed prior to the construction of appellant’s additions, and should not have been submitted as one of the prior existing conditions.

As indicated at another point in this opinion, the court, in response to inquiry from the jury, instructed them, in substance, that appellant had the right to operate its plant; but if in the operation thereof it produced a condition which would materially disturb and annoy persons of ordinary sensibilities and of ordinary tastes and habits, and such persons were damaged thereby, appellant would be liable, etc. The claim is made that the charge is erroneous because it not only authorizes damages for annoyance and disturbance of appellees in their home, but anywhere else, as while passing appellant’s plant. Obviously the jury had raised some question concerning the right of ap* pellamt to conduct the business it was engaged in, and the charge only undertook to answer that question with its qualifications, and we cannot conceive how the jury could have considered it authority for rendering judgment for annoyance suffered by appellees save in their home. The court in its general charge specifically told thd jury that appellees could only recover damages if they believed that appellant, by the operation of its mill, “caused noises, offensive odors, dust and lint, or either, to be conveyed to the plaintiffs’ premises,” etc. In our opinion the point is without merit.

Upon trial of the case appellee Mrs. Pearl Sartain testified in her own behalf. She was asked to describe the noises made by the mill, and among other matters testified: “One of the noises — I don’t know where it came from — was like a wagon running without grease, and another noise is an exhaust, like a motorcycle popping off on the street.” Whereupon her counsel inquired, “I want you to tell the jury — take the noise like an ungreased wagon, running and popping off like a motorcycle — tell the jury how that affected you.” The witness answered, “It made me very nervous. I had to leave home several times to get away from it; it gave me a headache.” To the question and answer counsel for appellant objected for the reason that the question was leading and assumed that such noises were made at appellant’s plant. The question was not, in our opinion, leading. What was sought to be •elicited was the effect the noises named had upon the witness, and did not in any respect suggest the answer to he made concerning the effect. If the question “merely suggests a subject, without suggesting an answer or a specific thing, it is not leading.” Jones, Ev. § 816. The subject was the noises; the information sought was the effect it had upon the witness. The other objection to the question, that it assumed the existence of the noises testified to by the witness, is, in our opinion, without merit The facts in any judicial proceeding on material matters are generally in dispute, and if the rule invoked was enforced it would make it impossible for either side to get before the jury all the facts tending to support their respective theories. The facts testified to by the witness concerning noises fairly tended to support the theory of appellees in that respect, and it followed, we think, as matter of course that appellees were entitled to show how such noises affected the witness.

Upon the claim of Mrs. Sartain that the operation of appellant’s mill affected her health, the evidence adduced by appellant tended to show that she had been in poor health for a period of years, and that she was frail and ill prior to and at the time of the construction and operation of the additions to appellant’s mill. The court on that issue instructed the jury, in substance, that if they believed Mrs. Sartain, at the time of the trial, was ill or in bad physical condition, and that such condition was due to former illness, they could not consider or allow any damages on account of such former illness. Appellant objected to said charge, and in lieu "thereof requested same to be corrected so as to inform the jury, in substance, that if they believed Mrs. Sartain’s then condition was due to former illness, then she could recover nothing at all on account of her health. We have compared and carefully considered the two charges, and conclude that, on fair analysis, each charge conveys the same meaning. The court’s charge directs the jury that, if Mrs. Sartain’s present condition is due to former illness, to allow no damages on account thereof, or, as the court literally puts it, allow no damages on account of the “former” illness. If the jury could not allow anything in damages for her present condition, if due to former illness, it is substantially the same as saying that, if her present condition is due to former illness, to allow her nothing “on account of her health,” as the objection put it.

Counsel for appellant presented, and the court refused a charge which, in substaneei Instructed the jury that Mrs. Sartain was not entitled to recover damages of appellant merely because she was in bad health, but that before she would be entitled to recover damages on account .of her health it must appear from a preponderance of the evidence that the operation of appellant’s additions to its mill would disturb and annoy persons of ordinary tastes, habits, and sensibilities, and that such operation did in fact materially affect her health, otherwise to return verdict for appellant The contention is that the charge should have been allowed because within the rule announced in Missouri, Kan. & Tex. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058. By that rule a party, upon request, is entitled to have the law of the case applied to the evidence, or to have the jury find whether the evidence establishes the existence of any specified group of facts which, if true, would in law establish his plea. If the charge refused presented for consideration of the jury any specific fact or group of facts for it to pass upon, it was that they should find by a preponderance of the evidence that the operation of appellant’s additions to its mill constituted in law a nuisance, and that that condition affected the health of Mrs. Sartain. We seriously doubt whether such a charge is a grouping of specific facts. However, on that issue the court’s charge was full and affirmative. The first paragraph instructs the jury that the nuisance contemplated in appellees’ pleading, and referred to . in the charge, means a condition arising from the operation of defendant’s mill, unbroken by any new or intervening cause, as would naturally produce the injuries complained of, and but for which such injuries would not have occurred. In the third paragraph the jury was instructed that if they believed from the evidence that the operation of the mill caused noises, offensive odors, dust, and lint to be conveyed to and in appellees’ house, so as to constitute a nuisance as defined, and as the proximate result thereof appellee Mrs. Sartain suffered illness, she could recover damages, while by the fourth paragraph of the charge they were told that, unless it was shown by a preponderance of the evidence that the operation of the mill did create the conditions complained of, to find for the defendant. It is true that the fourth paragraph of the charge did not specifically refer to the health of Mrs. Sartain, but that issue was made so plain in the other portions 'of the charge, and followed so closely the enumeration of that issue in the preceding paragraph of the charge, that.there can hardly be a reasonable doubt but that the jury was fully aware of the fact that Mrs. Sartain’s health must be so affected by the operation of the mill.

Finding no reversible error in the record, the judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    HUTCHINGS v. BINFORD et al.
    (No. 1411.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1918.)
    1. Brokers <&wkey;57(l) — Loan Broker — Right to Commission — Departure erom Terms.
    Loan broker, employed by landowner to procure loan to take up loan against land and debt due state, who procured company to offer loan, but on such conditions that proceeds were not available to pay state incumbrance., while provision for maturity of debt on contingency was departure from landowner’s terms, did not earn commission.
    2. Brokers <&wkey;57(l)~Loan Broker — Right to Commission — Waiver oe Terms by Borrower.
    A waiver, by borrower, of departure in terms of loan offered from that authorized to be negotiated by loan broker, to be operative must be supported by agreement on valuable consideration, or be such as to estop him from insisting on strict performance of contract.
    3. Brokers &wkey;>57(l) — Loan Broker — Waiver oe Departure erom Terms.
    Waiver by borrower of loan broker’s departure from terms of loan authorized by him is operative only where borrower has knowledge, actual or constructive, of the facts.
    4. Brokers <&wkey;57(l) — Loan Broker — Borrower’s Waiver oe Departure in.
    Landowner, who employed loan broker to procure loan secured by land, had right to assume, in connection with his claimed waiver of departure in terms of loan offered by company from that authorized, that terms embodied in papers sent to a bank by the lending company for execution conformed to his application.
    5. Brokers &wkey;>57(l) — Loan Broker — Departure in Terms oe Loan Procured — Waiver.
    Landowner, who employed loan broker to procure loan secured by land to take up previous loan against it and debt due state, held not to have waived departure, in terms of loan offered by company, from that authorized to be negotiated, by refusal to proceed further with loan on the ground he had secured one elsewhere.
    6. Brokers <&wkey;57(l) — Loan Brokers — Right to Commission — Variance.
    Borrower had right to vary terms of loan procured for him by a broker, and, if he accepted contract as varied, broker was entitled to commission ; but variance must have been knowingly made, to bind the borrower.
    Appeal from Oldham County Court; Wm. Balfour, Judge.
    Suit by C. P. Hutchings against Angelica Binford and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    C. E. Gustavus, of Amarillo, for appellant.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellees.
   BOYCE, J.

This suit was brought by C. P. Hutchings, a loan broker, to recover commission for services in procuring a loan of 340,000 for Thaddeus Binford, now deceased, to be secured by land in Oldham and Deaf Smith counties, Téx. The defendants, appel-lees here, were sued as heirs of Thaddeus Binford, under allegations that obviated tbe necessity for an administration and authorized the maintenance of this suit against such heirs. The facts are practically undisputed, and under these liability for tbe payment of commission is dependent on whether the proposed loan secured was in accordance with the terms upon which appellant had been authorized to secure it, and if there was a departure from the terms of this proposed loan, from the terms of the loan he was authorized to secure, whether Thaddeus Binford had, by his conduct, waived the variance.

Appellant having been authorized to secure a loan under an agreement for a commission of $400, to be paid for such services, entered into negotiations with the Missouri State Life Insurance Company, which resulted in Thaddeus Binford making written, application to said company for a loan, which application, we take it, embodied tbe terms of the loan which appellant was to procure under his employment. According to this application and some modifications agreed upon by the parties, the loan was to be for $40,000, payable January 1, 1927, with privilege ’of payment of certain parts of the principal before maturity after January 1, 1022, bearing interest at the rate of 7 per cent, per annum, payable annually, to be secured by first mortgage on 10,000 acres of land in Deaf Smith and Oldham counties. In this application a question was asked and answered as follows:

“Q. Eor what purpose is this loan desired? A. To take up loan now against land and state debt.”

In answer to another question in the application, it was stated that—

‘‘The only incumbrance against this land is deed of trust of $30,000, held by Geo. Hotchkiss, and state debt of $6,000, which incumbrance is to be paid from the proceeds of this loan.”

Abstracts of title were submitted to the insurance company and considerable delay incurred in meeting objections made to the title. Finally, the insurance company prepared notes and deed of trust for execution by Binford and sent them, with checks payable to Binford, to the First National Bank of Amarillo, with instructions to deliver the checks upon execution of the papers by Bin-ford, and subject to certain other conditions. Among these conditions was one that nothing was to be done with such checks until the bank should “first receive patents from the state of Texas to the borrower or some one in his chain of title” to the land on which there remained a balance due the state. The deed of trust, among other provisions, contained a stipulation to the effect that if any tax should be imposed or assessed within the state of Texas against the interest of the trustee, or the beneficiary of the trust, in said premises, or against the debt or notes secured thereby, while held by a nonresident, then the whole indebtedness should, at the option of the legal holder of said notes, become immediately due and payable, etc. The deed of trust contained other provisions which it is claimed were not contemplated by the terms of the application, but which we need not notice. The negotiations in behalf of T. Binford, who lived in Iowa, had been conducted by his son, who resided in Texas, who, it appears, did not keep his father advised of the facts causing the delay or the progress made in closing said loan. The said T. Binford, in the meantime, had made application to secure the money he needed 'elsewhere, and when he was notified that the papers aforesaid were at the Amarillo bank, ready for closing, he did not examine them, but declined outright to proceed further with the loan, on the ground that he had made other arrangements to secure the money.

We think it clear that the terms and conditions of the loan as proposed by the papers tendered Binford for execution, and instructions to the bank accompanying them, did not correspond to the terms and conditions of his application. Under the instructions to the bank the proceeds of the loan were not available to pay the state its in-cumbrance, and thus secure the patents which were made a condition precedent to the use of such funds at all. In order to have complied with such conditions, Binford would have been required to secure $6,000 elsewhere, and one of the expressed purposes of the loan would have been defeated. We think, also, that the provision for the maturity of the indebtedness upon, the contingency above referred to was a departure from any terms of the loan which appellant was authorized to procure. It is not shown that the life insurance company was willing to make the loan on any other terms or conditions, so that appellant cannot, we believe, successfully assert that it is shown that he procured a loan to be offered on the terms upon which he was authorized to procure it. Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323; Evants v. Fuqua, 102 Tex. 430, 118 S. W. 132, 132 Am. St. Rep. 892; Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847; Rabinowitz v. Smith Co., 190 S. W. 201. The only question then is: Whether Thaddeus Binford, by his refusal to proceed further with the loan, on the ground that he had secured a loan elsewhere, waived this departure in the terms of the loan offered from that authorized to be negotiated. “A waiver; to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on a performance of the contract or forfeiture of the condition.” . Insurance Co. v. Lacroix, 45 Tex. 168; Cyc. vol. 40, p. 263. Waiver is also only operative where the person charged with the waiver, has knowledge, actual or constructive, of the facts. Cyc. vol. 40, pp. 255, 256. Thaddeus Binford did not examine the terms of the loan contract proffered him, and had no knowledge thereof, unless it could be said that he was charged with knowledge thereof on the theory that it was his duty to examine them to see whether they conformed to his application. He had the right to assume, and doubtless did, that the terms of the loan embodied in the papers sent to the bank for execution were in conformity with his application. If he was ignorant of any departure from the terms of the application, such ignorance was, in a large measure, due to the fault of the loan company in varying the terms of the application. Under these circumstances, it does not seem to us that he could be properly chargeable with knowledge of these departures from the contract, which he had no reason to suspect existed. There certainly was no consideration for any waiver, nor is it suggested by the evidence that, if these objections had been seasonably made, they could or would have been obviated. So that the elements of estoppel do not seem to be present. He had the right, of course, if he saw fit to do so, to vary the terms of the loan contract, and, if it was accepted on such varied terms, the loan broker would have been entitled to his commission; but, of course, this agreement for a variance, in order to bind him, must have been knowingly made. Therefore we do not see how it can properly be said that Thaddeus Binford waived the difference in the terms of the proposed contract.

There are many cases which hold that where the contract, or thing tendered in performance of a contract, is examined and rejected, because it does not come up to the contract in certain stated particulars, the party to the contract making the objection thereby waives any others; he has by his acts impliedly agreed to the variance from the contract in other particulars. Mechem on Sales, vol. 2, § 1077. There are still other cases which hold that where the contract or thing offered in performance is examined by one of the parties to the contract and is subject to defects or objections, which if suggested could be obviated, and such party refuses performance and breaks off negotiations on grounds wholly disconnected with any such defect or objection, but in entire repudiation of any obligation of contract, then such party has waived his right to urge such objections. The cases of Johnson v. Stewart & Hay, 171 Mo. App. 543, 153 S. W. 511, and Fiske v. Soule, 87 Cal. 313, 25 Pac. 431, are illustrative of this class of cases. The true solution of cases of this character would, it appears to us, be dependent upon a determination of the question as to whether any “duty to speak” rests upon the party, and this “duty to speak” would doubtless depend largely upon the circumstances of each case. At any rate, appellant’s case does not fall within these decisions. It is not to be denied that many general expressions may be found in the authorities which support the appellant’s position. C. J. vol. 9, p. 627, and authorities there cited. An examination of these cases will disclose that most of these statements occur in the character of cases we have already been discussing, though there are some cases that in fact, as well as in pronouncement of rule, support such view. The case of Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116, does directly support appellant’s position. In that case it was held that a principal having refused to close a deal with •a purchaser tendered by a broker with whom he had listed the property, assigning as a ground for such refusal that the property belonged to his wife and he had no authority to sell it, could not show, when sued by the broker for commission on the transaction, that such proposed purchaser was not able to buy the property. The cases of Mutchnick v. Davis, 130 App. Div. 417, 114 N. Y. Supp. 997, and Bryant v. Thesing, 46 Neb. 244, 64 N. W. 967, are in conflict in principle with said case. The case of Rabinowitz v. Smith Co., 190 S. W. 200, 201, is in point on the facts decided, though the question, of waiver is not discussed. In that case it was held that the broker, who had made a sales contract embodying a term not authorized by his contract of employment, could not recover, though the contract was submitted to the owner, who made no objection to the particular term, but refused to complete the sale, on the ground that his brother, who owned an interest in the land, had decided not to accept such price for it. In the case of Colvin v. Blanchard, 101 Tex. 231, 106 S. W. 323, the only difference between the terms of the enlistment for sale and the contract made by the broker was that the notes for the deferred payments, as provided by the contract, were to read “on or before,” when this was unauthorized under the contract of enlistment. This contract was submitted to the owner, who “simply remained silent and ignored the transaction,” which, of course, was tantamount to a refusal to proceed with the sale. It was held that “he was not called upon to take any action in the premises,” and that he did not by such action ratify the unauthorized provision of the contract so that the broker had not earned his commission.

The reason assigned by Thaddeus Binford in refusing to proceed further with the consummation of the loan, to wit, that he had secured the money elsewhere, amounted to a breaking off of the negotiations without reference to whether the papers which he was asked to sign did or did not meet the requirements of the terms of the loan which appellant was to secure for him. He did not attempt to pass, on the sufficiency of these papers, and his acts are no more an approval of the terms and provisions of the loan contract than if he had remained silent or refused generally to proceed with the loan. We think the plaintiff failed to make out his case, in that he did not show that he had procured a loan on the terms upon which he was authorized to procure it, since the loan contract tendered was not in accordance with these terms, and the facts are insufficient to show that Binford ratified or approved this departure.

This conclusion renders it unnecessary to consider other questions raised by appellant, and results in an affirmance of the judgment of the court below.
      ®=3Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes