## NO. 12

- 1 2

- 00 259

- C V

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN REEVES, MELBA R EEVES , § APPEAL FROM THE THIRD AND NAN MILLER, APPELLANT

S

V. § JUDICIAL DISTRICT COURT

ROBERT HOOTO N

, APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION John Reeves, Nan Miller, and Melba Re eves ( Appellants) appeal the trial court’s judgment in favor of Robert Hooton in which the trial court ordered Appellants to permanently
desist and refrain from firing, detonating, operating, or using propane cannons or exploders on
Melba’s land. Appellants raise two issues on appeal. W e affirm.

B ACKGROUND
M elba 1 and Hooton own adjoining property in rural Anderson County, Texas. Miller is
Me lba’s daughter and manages the land for her. John leases Melba’s land and farms it. Specifically, John grows food for public consumption. John had problems with deer and hogs decimating his crops . To combat this problem
, John began using a propane canno n. A propane cannon creates an extremely loud noise when it discharges, and John used the cannon night and day during the growing season. Because of the noise, Hooton could not enjoy his property.

1 Melba died while this case was pending. For ease of reference, we refer to the land as her land rather than that of her estate.2

Hooton complained to John, and John moved the propane ca nnon farthe r away from Hooton’s land. But Hooton could still hear the noise from the cannon and could not sleep
because of the noise. He began sleeping in a bedroom that was the greatest distance from the noise and placed blankets on the wall in an attem pt to muffle the noise . B ut he could still hear
the noise
, and it bothered him. Unable to resolve the issue, Hooton filed the instant suit alleging
that Appellants had created a nuisance through John’s use of the propane cannon. Appellants denied Hooto n’s allegations and asserted various affirmative defenses. Appellants contended that a nuisance action based on John’s use of the propane cannon was prohibited because (1) he had conducted an agricultural operation on the property for more than

one year p rior to the date that Hooton brought his suit and (2) the conditions or circumstances constituting the basis for the nuisance action had existed substantially unchanged since the established date of operation. 2 Appellants filed a motion for summary judgme nt based on their
affirmative defense under S ection 251.004. The trial court determined that a fact issue existed as to whether the conditions or circumstances constituting the basis for Hooton’s nuisance action
ha d existed substantially unchanged since t he established date of operation. The matter proceeded to a jury trial. Ultimately, the jury found that John had created a nuisance through his use of the propane cannon and that the conditions or circumstances constituting the basis for the nuisance act ion had not existed substantially unchanged since the established date of operation. Based on the jury’s verdict, the trial court issued an injunction by
which it ordered Appellants to permanently desist and refrain from firing, detonating, operating,

or using propane cannons or exploders on Melba’s land. This appeal followed.

F ACTUAL S UFFICIENCY In their first issue, Appellants argue that the evidence is factually insufficient to support the jury’s finding that the conditions or circumstances constituti ng the basis for the nuisance action have not existed substantially unchanged since the established date of operation

. 3

2 T EX

. A GRIC

. C ODE A NN

. § 251.004(a) (West 2004).

3 This finding relates to Appellants ’ affirmative defense under the Right to Farm Act. See T EX

. A GRIC

. C ODE A NN . § 251.004.3

Standard of Review When a party attacks the factual sufficiency of an adverse finding on an issue on which it has the burden of proof, it must establish that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001). In making that determination, we consider and weigh all the evidence, not just that evide nce which supports the verdict. See Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 407 (Tex. 1998). We can set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that
it is clearly wrong and unjust. See i d. ; Cain v. Ba in , 709 S.W.2d 175, 176 (Tex. 1986). When reviewing factual sufficiency issue s, we are mindful that the fact finder is the sole judge of the credibility of the witnesses. See Canal Ins. Co. v. Hopkins , 238 S.W.3d 549, 557 (Tex. App

. – Tyler 2007, pet. denied ). Accordingly, we may not pass on the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a
different result. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003);
Elli s , 971 S.W.2d at 407. If we conclude that the evidence is factually insufficient, we must clearly state why the jury’ s finding is insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Pool v. For d Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986).
Nuisance from an Agricultural Operation A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibi lities attempting to use and enjoy it. Schneider Nat'l Carriers, Inc. v. Bates , 147 S.W.3d 264, 269 (Tex. 2004); Warwick Towers Council of C o - Owners v. Warwick, L.P. , 298 S.W.3d 436, 444 (Tex. App.

– Houston [14th Dist.] 2009, no pet.). “Nuisance” refers t o a kind of damage done, rather than to any particular type of conduct. City of Tyler v. Likes , 962 S.W.2d 489, 504 (Tex. 1997). A private nuisance affects an individual or a small number of individuals rather than the public at large. See Walker v. Tex . Elec. Serv. , 499 S.W.2d 20, 27 (Tex. App.

– Fort Worth 1973, no writ). An actionable nuisance may arise from an invasion of another's interests attributable to activity that is intentional, negligent, or abnormal and out of place in its surroundings. War wick , 298
S.W.2d at 444. The legislature passed the Right to Farm Act “limiting the circumstances under which agricultural operations may be regulated or considered to be a nuisance.” T EX

. A GRIC

. C ODE4

A NN . § 251.001 (West 2004 ) ; Holubec v. Brandenberger
, 111 S.W.3d 32, 35 (Tex. 2003). Under the Right to Farm Act, a nuisance is not actionable against an agricultural operation that
has been lawfully in operation for one year or more prior to the date on which the action is brought so long as the conditions or circumstances constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation. See T EX

. A GRIC

. C ODE A NN . § 251.004. An agricultural operation includes producing crops for human food. Id

. § 2 51.002(1) (West Supp. 2012). The established date of operation is the date on which an agricultural operation commenced operation. Id

. § 251.003 (West 2004 ). Application The focus of our inquiry is whether there is factually sufficient evidence to suppor t that John did not use the propane cannon in substantially the same manner for one year or more prior to Hooton’s filing suit. See Holubec , 111 S.W.3d at 38 (“[T]he relevant inquiry is whether the conditions or circumstances constituting the basis for th e nuisance action have existed for more than a year.”). T he testimony on this point was conflicting . Moreover, with regard to the placement of the propane cannon, it was particularly vague and equivocal. 4 Hooton initially
testified that he did not hear the propane cannon until 2009. But h e later equivocated, claiming that John was not using a propane cannon until that time . Hooton further testified that he saw John using the cannon very close to Hooton’s property. Hooton stated that he kept logs of th e cannon discharges made in 2010 and 2011 , and t hose logs were introduced into evidence. According to the logs, John caused the propane cannon to discharge as frequently as every minute and thirty

- seven seconds. The logs further indicate that on several other occasions, John
caused the propane cannon to discharge every five minutes or less. Hooton’s sister, Sandy Hodge, similarly testified that she first heard the propane cannon approximately two years before the trial or sometime in the spring of 2010.

4 During much of the testimony, the witnesses were asked questions based on a map. However, the map is not a part of the record an d, even if it were , it would not help us decipher much of the testimony. For instance
, John testified as follows : Q. No. Let’s talk about

-- Right here. You put it in that at times, don’t you? A. No, sir. Down a little bit. Q. Right there? A. You’re kind of shaky there. Q. I beg your pardon? Walk down there and show the jury where you placed this cannon. A. (Witness complies.) I’ve had it here, and here, and approximately in here.5

John testified that he used the propane cannon beginning in 2006 or 2007. H e later testified that he did not purchase the propane cannon that he used on Melba’s property until 2007. He conceded that he did not cultivate the field nearest Hooton’s proper ty until 2007. When asked where he used the propane cannon in 2007, John admitted that he could not
remember. H e further conceded that if he moved the propane cannon closer to Hooton’s property and had it discharging every minute and a half to two minute s , that would amount to a substantial change. John later claimed that he did not use the propane cannon any differently in
2009 than he had used it in 2007 and 2008. Miller testified that she first heard the cannon in 2006 or 2007. Several neighbors

test ified, but none could agree on a date that John began using the propane cannon. Some
testified that he used it in 2006 or 2007 ; others testified he used it later. We have examined the entirety of the record and have considered and weighed all of the
evide nce. Based on our review of the record, we cannot conclude that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust

. Accordingly , we hold that the evidence is factually sufficient to support the jury’s determination
that the conditions or circumstances constituting the basis of Hooton’s nuisance action had not existed substantially unchanged since the established date of operation

. Appellants’ first issue is
overruled.

I NJUNCTION In their second issue, Appellants contend that the trial court abused its discretion by enjoining their use of a propane cannon on any portion of Melba’s land. Standard of Review and Applicable Law We review a trial court’s decision to grant a permanent injunction under an abuse of
discretion standard. Pool v. River Bend Ranch, L.L.C.
, 346 S.W.3d 853, 859 (Tex. App.

– Tyler 2011, pet. denied). Because an injunction is an equitable remedy, a trial court weighs the respective conveniences and hardships of the parties and b alances the equities. Vaughn v.
Drennon , 202 S.W.3d 308, 313 (Tex. App.

– Tyler 2006, no pet.). The trial court does not abuse its discretion where it bases its decision on conflicting evidence. Pool , 346 S.W.3d at 859. Indeed, a trial court does not abu se its discretion as long as there is some evidence to support it s6

decision to grant the injunction, and we may not substitute our judgment for that of the trial court simply because we would have decided otherwise. Id

. Orders granting injunctions must b e specific and describe in reasonable detail the act sought to be restrained. See T EX

. R. C IV

. P. 683. An injunction must be definite, clear, and concise, leaving the person enjoined in no doubt about his duties, without calling on him for
inferences or conclusions about which persons might differ. See id .; Vaughn , 202 S.W.3d at 316. An injunction should be broad enough to prevent a repetition of the evil to be corrected
, but not so broad that it enjoins a defendant from activities that are lawful and t he proper exercise of his rights. Pool , 346 S.W.3d at 860. The right to use property as the owner chooses, so long as the use harms no one , is a natural right. See i

d . However, it is a right that takes into account the equal rights of others and is qua lified by the obligation that the use of the property shall not be to the prejudice of others.
Id

. Application Appellants argue that the trial court crafted the injunction too broadly
, and instead
, they should be enjoined, if at all, from firing the prop ane cannon on the “east end” of Melba’s property. Specifically, Appellants note that ( 1) Hooton testified that he did not hear the propane
cannon before 2009
, and John and others testified that John was using the propane cannon before
then
, and ( 2) Hooton ’s expert witness testified that if the propane cannon w ere moved a half mile

away or more , the sound level would not be a problem for Hooton. Hooton testified that he heard the propane cannon even after John moved it farther away

. He also testified that the noise “was ne ver comfortable,” but instead, became merely “ more tolerable.” Hooton conceded that if John used the propane cannon in a location where he could not hear it, he would not care about its use . But Hooton never testified that there were po rtions of Melba’s land where John could use the cannon and Hooton could not hear it. In fact, John testified that Hooton should be able to hear the cannon from a mile away and that Hooton should
be able to hear the cannon even if he used it in the areas f arthest from Hooton’s property. Therefore, t he trial court’s decision to enjoin Appellants from using the propane cannon on any part of Melba’s property is supported by the evidence. See Pool , 346 S.W.3d at 859. Additionally, the trial court must weig h all the conveniences and hardships for the parties when determining whether and at what level to issue an injunction. Vaughn , 202 S.W.3d at 313.7

While the evidence was controverted somewhat by Appellants, Hooton presented significant
evidence that the propane cannon was ineffective in protecting John’s crops from invasions by deer and hogs. Hooton also presented testimony that John’s pea crop was not damaged by birds, the animal that propane cannons are most effective in deterring

. Finally, John made i t clear that he did not care that the propane cannon was a nuisance to his neighbors. He was adamant that he leased the property and could do what he wanted on it
, including using a propane cannon day and night. He contended that he would consider ceasin g his use of the propane cannon if a magistrate threatened to prosecute him. Based on our review of the entire record, we conclude that the trial court did not abuse its discretion in enjoining Appellants from using a propane cannon on any part of Melba’s land. The trial court weighed the equities of the two sides and crafted an injunction that is supported by the evidence. Accordingly, we hold that the trial court’s injunction that Appellants permanently desist and refrain from firing, detonating, operat ing, or using propane cannons or exploders on Melba’s land is not overly broad. Appellants’ second issue is overruled

.

D ISPOSITION Having overruled Appellants’ first and second issue s , we affirm the trial court’s judgment. 

### B RIAN 

### H OYLE Justice

Opinion delivered August 29 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)8 

### COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 29 , 2013

NO. 12

- 12

- 00259

- CV

JOH N REEVES, MELBA REEVES, AND NAN MILLER , Appellant s V. ROBERT HOOTON , Appellee

Appeal from the 3rd Judicial District Court
of Anderson County, Te xas. (Tr.Ct.No. 3

- 41048 )

THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that all costs of this appeal are hereby adjudged against the appellant s , JOHN REEVES , MELBA REEVES, AND NAN MILLER
, for which execution may issue, and that this decision be certified to the court below for observance.

Brian Hoyle , Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.