(dissenting on rehearing).
After further consideration and study of the record and applicable authorities. I have reached the conclusion that our original opinion is incorrect and that appellees’ motion should be granted and the judgment of the trial court affirmed.
The statement of the nature of the cause of action in our original opinion is correct and I shall not add thereto. All issues of fact were found by the jury in favor of appellees. There is ample testimony in the record .to. sustain each finding by the jury.
Appellant, a private, enterprise, set up shop in the community adjacent to appel-*84lees’ homes established prior to the erection of appellant’s plant. Terrible stench and foul odors emanated from apellant’s rendering plant, and entered appellees’ homes which made them uninhabitable. The facts also showed that many maggots and flies were found upon appellant’s premises. This condition was found by the jury to be recurring in nature and “substantially interfered with the enjoyment of their respective homes * * * by plaintiffs” (appellees).
Section 4 of Article 4642, Vernon’s Annotated Civil Statutes, provides in part that an injunction may be granted where “irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law.’’ (Italics ours.)
The injury to appellees’ health or the danger of some injury thereto and the deprivation of the use of their homesteads constitutes an irreparable injury. Stark v. Coe et ux., Tex.Civ.App., 134 S.W. 373, 377, writ refused, and cases there cited.
The same authority states further: “A person aggrieved by reason of a nuisance which seriously affects his health and life and the comfortable enjoyment of his home can call to his aid the equitable powers of the court to enjoin and abáte the nuisance, and it makes no difference if the person causing the nuisance is financially responsible for the damage incurred.”
See also Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; Mann v. Trinity Farm Co., Tex.Civ.App., 270 S.W. 923; Frisby v. Rockins, Tex.Civ.App., 105 S.W.2d 362; writ dismissed; Mid-Texas Petroleum Co. v. Colcord, Tex.Civ.App., 235 S.W. 710. In the very recent case of Landwer v. Fuller et al., Tex.Civ.App., 187 S.W.2d 670, 673, writ refused w. m., Chief Justice Pitts of Amarillo Court of Appeals has the following to say:. “If irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law, or, if the nuisance found to exist is of a recurring nature, an injunction to abate same will lie.”
The above authorities in my opinion furnish sufficient authority for the affirmance of the judgment of the trial court.
To relegate the appellees to suits for damages growing out of the nuisance created by appellant, since the causes constituting the nuisance are of a recurring nature, would force them to be continually bringing suits against appellant for damages to their health and property caused by eacli wrongful act. On the other hand, the granting of an injunction to restrain the operation of said plant would settle the matter once and for all. Under a familiar rule of equity no person may so use his property as to injure the health and property of his neighbor, and certainly this would apply in this case where the appel-lees had their homes established before appellant came into their community. The authorities cited in the majority opinion have reference to public utilities and are not applicable to the facts in this case.
It is my opinion'that the judgment of the trial court should be affirmed.