Gillespie County v. Fredericksburg Land Co.

FLY, C. J. Appellant sought to compel ap-pellee to remove a dump and bridge out of San Saba»street in the unincorporated town of Fredericksburg, and out of the San Antonio-Austin-Fredericksburg Road, and restrain it from again building such dump and bridge. The court refused to issue the writ of injunction. [1] San Saba street is the principal one in Fredericksburg, and one end runs into a cul-de-sac on Barron’s creek; that end for some distance not being used, as a high bluff on the opposite side of the creek from the town prevents a crossing there. At some 200 or more feet from the bed of the creek, the San Antonio road turns off the street in order to get to a crossing, and after crossing the creek turns so as to cross a prolongation of San Saba street. Appellee built a bridge ■across the creek and an approach to it on the unused end of San Saba street. The bridge was shown to be a substantial wooden structure with an easy approach which does not in any manner interfere with or obstruct any traveled portion of the road or street, and ■the bridge and approach have shortened the distance across the creek to the San Antonio road which is intersected by-a prolongation of the street. The street and road are rendered much more convenient by the erection •of the bridge and approach, aud, instead of being a nuisance, is of incalculable benefit to the people of Fredericksburg and Gillespie county. It renders the creek passable in times of high water and shortens the distance for all who travel the road. [2] To destroy the bridge across the creek would not only be of no benefit to appellánt, but would be of great public injury to the citizens of the county, and a court of equity will not grant an injunction for the purpose of protecting a technical or unsubstantial right. Beach on Inj. § 1067; Joyce on Inj. § 21. In order to create a nuisance from the use of property, a material, substantial, and appreciable injury must be occasioned to the person or property of another. In this case there was no injury, but a positive benefit. An unused and unusable portion of a street was improved, a good bridge put'across the stream, which should have been there long ago, and the distance shortened for those who desire to travel in that direction. “Without money and without price” a substantial improvement has been made for the county, which its commissioners’ court desires torn down and destroyed without giving any reason for such desire except that “the construction of a wooden bridge across Baron’s creek is impracticable, and this court having no desire to assume any responsibility on the part of the county.” The able judge who heard the facts very properly refused the aid of a court of equity to destroy the bridge tendered to the county. There were no obstructions placed in the street, but merely modern improvements made that will be of lasting benefit to the county and town, and the evidence justified the court in finding that the bridge was not a nuisance but a blessing. The judgment is affirmed.