                                        NO. 12-12-00259-CV

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

JOHN REEVES, MELBA REEVES,                                  §           APPEAL FROM THE THIRD
AND NAN MILLER,
APPELLANTS

V.                                                        §             JUDICIAL DISTRICT COURT

ROBERT HOOTON,
APPELLEE                                                §              ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
         John Reeves, Nan Miller, and Melba Reeves (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. We affirm.


                                                  BACKGROUND
         Melba1 and Hooton own adjoining property in rural Anderson County, Texas. Miller is
Melba’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 cannon. 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.
        Hooton complained to John, and John moved the propane cannon farther 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 attempt to muffle the noise. But 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 Hooton’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 prior 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 judgment based on their
affirmative defense under Section 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
had existed substantially unchanged since the 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 action 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.


                                          FACTUAL SUFFICIENCY
        In their first issue, Appellants argue that the evidence is factually insufficient to support
the jury’s finding that the conditions or circumstances constituting the basis for the nuisance
action have not existed substantially unchanged since the established date of operation.3




        2
            TEX. AGRIC. CODE ANN. § 251.004(a) (West 2004).
        3
        This finding relates to Appellants’ affirmative defense under the Right to Farm Act. See TEX. AGRIC.
CODE ANN. § 251.004.


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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 evidence 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 id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
       When reviewing factual sufficiency issues, we are mindful that the factfinder 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);
Ellis, 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. Ford 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 sensibilities 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 Co-Owners v. Warwick, L.P., 298 S.W.3d 436, 444 (Tex. App.–
Houston [14th Dist.] 2009, no pet.). “Nuisance” refers to 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. Warwick, 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.” TEX. AGRIC. CODE



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ANN. § 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 TEX. AGRIC.
CODE ANN. § 251.004. An agricultural operation includes producing crops for human food. Id.
§ 251.002(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 support 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 the nuisance action have existed for more
than a year.”). The 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 he 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 the
cannon discharges made in 2010 and 2011, and those 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 and, 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.




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        John testified that he used the propane cannon beginning in 2006 or 2007. He 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 property until 2007.
When asked where he used the propane cannon in 2007, John admitted that he could not
remember.     He 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 minutes, 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
testified, 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
evidence. 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.


                                             INJUNCTION
        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 balances 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 abuse its discretion as long as there is some evidence to support its




                                                    5
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 be specific and describe in reasonable detail the act
sought to be restrained. See TEX. R. CIV. 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 the 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 id. However, it is a right that takes into account the equal rights of others and
is qualified 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 propane 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 were 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 never 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 portions
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 farthest from Hooton’s property.
Therefore, the 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 weigh 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.



                                                 6
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 it 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 ceasing
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, operating, or using propane cannons or
exploders on Melba’s land is not overly broad. Appellants’ second issue is overruled.


                                                    DISPOSITION
         Having overruled Appellants’ first and second issues, we affirm the trial court’s
judgment.
                                                                BRIAN HOYLE
                                                                  Justice


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




                                                    (PUBLISH)



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                                    COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                            JUDGMENT

                                          AUGUST 29, 2013


                                        NO. 12-12-00259-CV


                 JOHN REEVES, MELBA REEVES, AND NAN MILLER,
                                  Appellants
                                     V.
                              ROBERT HOOTON,
                                  Appellee


                            Appeal from the 3rd Judicial District Court
                         of Anderson County, Texas. (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 appellants, 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.




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