(concurring in part and dissenting in part).
As this case presents itself on this appeal, it presents three main questions. They are:
(1) Can Mrs. Marek sustain her judgment for damages for the construction and operation of the structures in this case, when, by her deed in 1949, she expressly gave defendant a license to construct the very installations which she claims create the vibration which causes her injury and it is found by the court, with no exception to the finding, that the installations which Mrs. Marek licensed defendant to construct and operate were not being operated negligently and that they could not in a practical sense be operated otherwise than they have been and are being operated.
The appellant insists that, under this precise language in 39 American Jurisprudence, Sec. 199, page 475, “License from Individual Effected by Nuisance”,
“A right to maintain a private nuisance may rest in a license from • the individual affected by the licensee’s offensive conduct and in an action seeking redress for such a nuisance, if the defendant can show an authorization from the plaintiff, he thereby completely discharges himself from liability. So a structure cannot be complained of as a nuisance by a person who has licensed its construction”, citing cases,
Mrs. Marek cannot maintain this suit. In support of this view it cites, in addition to American Jurisprudence, supra, many other cases from Texas 1 and elsewhere. I agree with appellant.
(2) If Mrs. Marek is not cut off by her grant of a license, is she not, under the undisputed evidence in this ease, including her own testimony given by deposition and on the trial, that the 1949 installations caused vibration dam*941age to her and her property, avoid the two year statute of limitations merely by stating, as she does, that after they put the sixth engine in in 1951 there was more vibration than there was before it was put in?
Appellant insists that the law, upon the authorities cited by it, is plain, that for a permanent nuisance there is only one cause of action, and limitation as to it begins to run from the time that the nuisance begins to make itself felt, Vann v. Bowie Sewerage Co., 127 Tex. 97, 90 S.W.2d 561. So insisting, it urges upon us that a person who, as Mrs. Marek does, after claiming in all of her petitions except one that the damage began in 1949, in order to avoid limitation, changes her claim in her last petition to claim that the real damage did not begin until 1951, may not do so.
I agree with appellant that this is so. A reading of the record and the authorities relied on by appellant leaves me in no doubt that Mrs. Marek cannot recover either as to the damage to her land or for personal injuries caused by the nuisance. The evidence, including her own testimony, shows without contradiction or dispute of any kind that the construction of this plant was for her benefit as well as for that of the company, and that, in granting the license, she had in mind (1) that her production would be increased, (2) that one or more of her sons would be employed, and (3) that it would be specifically agreed between her and the appellant that she was conveying not the fee to the land but an easement right in it for the use described in the instruments, the construction and operation of a plant, which, according to the findings of the district judge, necessarily gives off vapors and which cannot foe operated without vibration.
I think the district judge wrote a thoughtful and moat helpful opinion. I think he erred in allowing Mrs. Marek to recover. One of the reasons for this error is, I think, that, though he quoted from Section 199 in American Jurisprudence, above quoted, the statement following the above quotation, in effect that a license to carry on a particular business or trade does not give permission to carry it on in such a manner as to constitute a nuisance, “at least in the absence of proof that it could not in a practical sense be carried on otherwise”, he did not give full effect to the fact that by refusing an injunction to abate the nuisance, and by instructing temporary damages out of the case, he had held that the operation licensed by Mrs. Marek “could not in a practical sense be carried on otherwise”. This in turn was due, I think, to Ms failure to distinguish the question of the effect of the konwledge or absence of knowledge of Mrs. Marek as to what damaging effects would flow from the operation of the plant involved, where the defense was estoppel in pais, from the operative principle of law, where the estoppel arises out of the grant of a license that the grantor and his privies are charged in law with knowledge of what damaging effects would flow, when the proof shows, as here, that the actual operation of the structure was attended with the damaging effects of, and only of, such a plant when operated properly. He did this, in short, by not clearly enough distinguishing the estoppel in pais, which arises out of acquiescence or consent, treated of in 39 Am.Jur., Sec. 198, with the estoppel by deed which arises out of an express license conferred by grant, treated of in Sec. 199.
With deference, the majority has done the same thing by referring to Sec. 198 instead of 199, as stating the principle controlling here.
I think it clear that for this reason the judgment in favor of Mrs. Marek must be reversed and here rendered for appellant.
An additional ground of reversal as to Mrs. Marek is that, as contended by appellant in its answer to question two, her suit was barred by limitation. Under the unitary cause of action rule, which prevails in Texas, Vann v. Bowie Sewerage Co., supra, and cases there cited, governing recovery for a con*942tinuing1 or permanent nuisance, one affected by the’nuisance cannot, by splitting the' injurious consequences' of the nuisance.to him into1 separate'portion^ and suing .otily for the' portion of the damages which he claims have accrued within the'limitation period chosen by1 him, avoid .the bar'of the statute. ‘ Under this rule, the. question,' when did the' Cause of action arise and limitation begin .to fun, is determined by answering íhe question,' when did the injury from the nuisance become substantial. Fof it was ’at that time, and not afterward that the. causé of aciidn ard.se, and with7 íij the .applicable period of limitation from that time a suit must be brought' fn which all damages which might reasonably be expected to flow in the fu7 ture must be liquidated. The 'action' Cannot be delayed until the effect of the' nuisance has reached its peak. This'does not mean that limitation starts to run, before the nuisance causes injury. ' It' does mean, though; that it starts to run' áfter substantial injury-commences, even' though the injury is slight and though1 it beeomés increasingly greater. The Texas cases leave this in no doubt.'
‘ (3) Can Sharpe, who purchased from Mrs. Marek after .she made the 1949 deed but, having sued -earlier, is not barred, by limitation, sustain his judgment as to the-dámage to the value -of his property? • .. .
Appellant insists that-he cannot, and,in support of this insistence, it cites many cases, including Crawford v. Magnolia Petroleum Co., Tex.Civ.App., .62 S.W.2d 264; Vann v. Bowie, Sewerage Co., 127 Tex. 97, 90 S.W.2d .561; Consolidated Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394; and 39 Am.Jur.Cum. Supp. p. 41.
I agree with appellant that he cannot so recover.
As to personal injuries to Sharpe and to members of his family, however, the matter stands differently. Vann v. Bowie Sewerage Co., supra. Cf. the very full and interesting discussion in American Law Reports, Annotated, 142 A.L.R. p. 1307.
I conclude, then, that the judgment should be reversed in part and affirmed in part. It should be reversed entirely as to Mrs. Marek. It should be reversed as to the recovery for the Sharpes of the decreased value of' the property. It should be affirmed as to the recovery for the Sharpes and their children for personal injuries. So concluding, I concur' in part and respectfully dissent in part.
Rehearing denied; HUTCHESON,. Chief Judge, dissenting.
. Crawford v. Magnolia Petroleum Co., Tex.Civ.App., 62 S.W.2d 264; State v. Brewer, 141 Tex. 1, 169 S.W.2d 468; Texas Power & Light v. Casey, Tex.Civ. App., 138 S.W.2d 594; The Houston & E. T. Ry. Co. v. Adams, 58 Tex. 476.