It is the rule that, when the acts or establishments complained of as working hurt or injury are not nuisances per se, but may or may not become so, according to locality, manner, or use, and the surroundings, it is especially proper to refuse a temporary injunction when it is uncertain or indefinite or contingent that a nuisance will result, or in cases of conflicting evidence as to the fact of a nuisance. 1 High on Injunctions (4th Ed.) § 744. In their brief appellants admit, and do not claim to the contrary, that the alleged establishment complained of is not legally classed as a nuisance per se; i. e., a nuisance at all times and under any circumstances, regardless of location or surroundings. And the evidence offered to show that the establishment complained of is a nuisance in fact, in virtue of the place selected, the surroundings, the manner of use and attendant circumstances, when considered as whole, reasonably goes to show a case within the rule above announced. Therefore, in view of the evidence, the appellate court would not be warranted in setting aside the trial judge's order refusing a temporary injunction. Since the case is yet to be heard on a final hearing, the evidence is not discussed by this court. As a general statement in respect to the evidence and the pleadings, seeking remedy by injunction to prevent the establishment of an alleged nuisance, it is not an invasion of the property rights of the owners of residences in the immediate vicinity to erect and maintain tanks for storing and keeping oils, and therefore not the foundation of a suit for injunction to restrain the "erection" or installation in the first instance of the tanks, unless it is affirmatively established that the location selected, with the surroundings and all the attendant circumstances, may make the keeping and storing of oils, even though carefully kept or stored, a nuisance, where danger from fire or explosion therefrom is continuous and imminent or liable to occur and with consequent injury to the residences and the inmates thereof, or greatly interfering with, if not entirely destroying, the proper enjoyment of such dwelling houses. The mere possibility of injury to the adjacent residences is insufficient to warrant restraining "the erection" of the oil tanks. Joyce on Nuisances, § 415, p. 592; 1 High on Injunctions (4th Ed.) § 742. Also it is not enough that the mere location of the tanks there would render the residences less desirable as dwelling houses for families. League v. Journeay, 25 Tex. 172.
The second ground of complaint appears to be in respect to acts producing personal discomfort and rendering the adjacent residences less desirable and valuable for dwelling houses for families, in "storing, keeping, and handling" the oil in such manner and way as to cause "leakage, seepage, and waste on to the ground," and "noxious and offensive vapors, odors, and gases" which will pollute the atmosphere and render same not pure and wholesome. Such alleged acts arise, of course, from the conduct and operation of the business, and may legally be abated. But the right of action in such facts is, not to restrain the "erection" of the tanks or absolutely prevent the carrying on of the business of storing and keeping oil, but to restrain the improper use or negligent maintenance of the property. 20 R.C.L. § 94, page 481, and page 439; Joyce on Nuisances, § 90, p. 138; 29 Cyc. pp. 1222, 1223. The case of Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573,26 S.W. 97, cited by appellants, is not a holding to the contrary, but in effect applies that rule to the facts of the case. The factor of the case was negligence. Quoting from Joyce on Nuisances, supra:
"Where a business can be so carried on that it will not constitute a nuisance, an injunction restraining the carrying on of the business will not be issued, but the court will so frame its order that the business may be continued, provided it is so conducted as not to create a nuisance."
The judgment is affirmed. *Page 792