On Motion for Rehearing
In our original opinion, we stated: “This court is not unmindful of the great loss that will be sustained by the appellants by the tearing down of the filling station when the mandatory injunction is put into effect. * * * ” Tliis question still gives this Court much concern and we have given much more consideration to it on Appellants’ Motion for Rehearing. As we understand the evidence, appellants’ property fronts on the northeast corner at the intersection of Reveille Road with Park Place Road in the City of Houston; that directly across Park Place Road, and at the northwest corner of the intersection there is constructed a large filling station}, at the southwest corner there is another large filling station; at the southeast corner there is now constructed a grocery store and a liquor store, and there is a suit pending (according to statement of counsel in oral argument) with reference to the grocery store and the liquor store, and this suit has not been tried and is awaiting the outcome of the Court’s action in this cause. Much testimony was tendered with reference to the damage that would be sustained by the residents in this particular addition; some of the witnesses testifying that there would be no damage; others testifying to various amounts but the highest damage testified to by any witness was the damage to the property next to the Davis property, and such witness estimated such damage to be the sum of $500; some witnesses testified that other lots in the addition had been damaged to the extent of $500. This Court permitted oral argument on Motion for Rehearing, and during the argument one member of the Court asked counsel for appellees what he would consider to be the relative losses of appellants and appellees if he should attempt to balance the equities between the parties and his answer was to the effect that if the filling station was torn down under the terms of the mandatory injunction that appellants’ loss on the building would be in the neighborhood of $125,000, and that was his estimate of the loss without the expense of tearing it down. No testimony was tendered as to the cost of tearing down the station, but counsel for appellees and appellants each were of the view that the expense incurred would be a substantial sum. A member of the Court made inquiry of appellees’ counsel as to what the Trial Court in this cause said, if anything, with reference to the balancing of the equities at the time he entered the order and counsel stated that the Trial Judge said in effect that he did not know what the situation would be with reference to the particular matter two years from the date he entered the judgment, which was in May 1958, but as of that date he would grant the bill of review and enter an order granting a mandatory injunction and direct the appellants to tear down the building. As we understand the record, when this cause was before the 55th Judicial District of Harris County in January, 1955, the factual situation at the street intersection was substantially the same as now, except the fact that appellants’ two residences located on their property were still standing. The 55th District Court, after hearing the testimony, entered the order holding that the *640property was not under restrictions. Therefore, we have two Courts of equal dignity and jurisdiction maintaining opposite views with reference to this factual situation. We think that we should state that when the appellees filed their original bill to set aside the Court’s judgment (declaring that the property was free from restrictions) that they did not ask for a temporary injunction. The record shows that the appellees filed their second amended original petition on July 27, 1956, and that they did not ask for a temporary injunction in this petition. Appellees went to trial on their third amended original petition filed November 6, 1957, and in that pleading they set up for the first time that a filling-station had been constructed on the property, but did not state just when the filling station had been constructed. They did set out in the last pleading that they had been damaged in the sum of $20,000, because the appellants had violated the restrictions in the construction of the station, and the appellees asked for the first time that the station be demolished. The record does not show exactly when the station was constructed but counsel indicate and agree that it was subsequent to the filing of the Lis Pendens Notice, which was on May 1, 1956, and the record shows that the lease from the Davises to the Texas Company was executed on the 21st day of August, 1956, and that the building was constructed either in late 1956 or early 1957. The record shows that during the time that the building was being constructed that appel-lees were aware of such construction but that they made no effort to have the Court grant a temporary restraining order. The record shows that some several months passed from the beginning of the construction of the building until it was completed and occupied by the Texas Company and that during the construction counsel for ap-pellees did not ask the Court for temporary writ to halt the construction. Counsel for appellees in their brief and oral argument stated that the reason they did not ask the Court for a temporary injunction was due to the fact that if it had been granted .they would have had to execute a bond and they did not want to obligate themselves to give a bond to prevent the construction of the building because they did not want the further expense of litigation on the bond in the event they should not prevail.
We think the Rule in Texas is that a party seeking injunctive relief “must not only show that injustice has been done him, but he must, in addition, show that he has not been wanting in the proper diligence, and he must disclose clearly that there has been no negligence on his part.” See Morris v. Edwards, et al., 62 Tex. 205, point on page 208, and authorities there cited. In Simon v. Nance, Tex.Civ.App., 142 S.W. 661, n. w. h., we find this statement of the Rule:
“It is undoubtedly the law that before a party is entitled to a mandatory injunction it must appear that he would suffer material and substantial injury if the writ were refused. * * * Where the damage is so very small and the right so unimportant as to make the case a trivial one, equity will dismiss the bill.” See point 3 at page 663.
See Dallas Hunting & Fishing Club v. Dallas County Bois D’Arc Island Levee District, Tex.Civ.App., 235 S.W. 607, point 2 at page 612, n. w. h.; Los Angeles Heights Independent School Dist. v. Chestnut, Tex.Civ.App., 287 S.W. 693; Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, points 1 to 4.
We do not find any allegation in appel-lees’ petition to the effect that they had used diligence to prevent the construction of the filling station by the Davises. Counsel for appellant stated in oral argument that when the appellees filed their case that they seasonably called for a jury and paid the jury fee, and had the case placed upon the jury docket, and at that time the crowded condition of the jury docket at Houston was that ordinarily a jury case could not be tried under two years or more. Appellees'’ counsel stated in oral argument that the *641reason they placed the case on the jury docket was due to the fact that he at that time thought he would have to try the case before Judge Ewing Boyd (55th District Court) and he was unwilling to submit the matter to Judge Boyd in view of the previous judgment he had entered in 1955. The questions arise: Would not Judge Boyd have been in a better position as Judge of the 55th District Court to determine whether or not the Court had been deceived or imposed upon and induced by fraud to hold that the property was free from restrictions? Could the 80th District Court adequately and fairly determine whether or not the 55th District Court had been deceived? We think the questions answer themselves.
That brings us to the doctrine of the balancing of the equities. That question gives us great concern for two reasons : First of all, there is a conflict in the decrees entered by the 55th and the 80th District Courts, these Courts being of equal dignity and equal jurisdiction in the same community. Needless to say these decrees are in irreconcilable conflict, and we are face to face with a most unusual situation, because if the mandatory injunction is allowed to stand the Davises will suffer a loss estimated by counsel for appellees to the amount of approximately $125,000, plus the expense of carrying out the mandate of the injunction, while on the other hand, the property owners in the addition will suffer minor losses compared with the loss sustained by the Davises. According to the record the greatest loss to be suffered by any property owner in addition would be in the neighborhood of $500 if the filling station is allowed to stand. It seems to us that the weighing of the losses to be sustained by the appellants as against the benefits to be received by the appellees must be controlling here. “A court of equity is a court of conscience. The function of the chancellor is, upon equitable consideration, to winnow the wheat from the straw, and his decree will not be set aside on appeal unless, * * * it is made to appear that it is not equitable but inequitable to let it stand.” See Durkin v. Lovknit Mfg. Co., 5 Cir., 208 F.2d 665, 667, points 3 to 5, Hutcheson, C. J. See Humphrey v. Humphrey, 254 Ala. 395, 48 So.2d 424, 31 A.L.R.2d 315. Also see 24-A Tex.Jur. Sec. 58; “Injunctions,” 28 Am.Jur. Sec. 52; “Injunctions,” 28 Am.Jur. Sec. 53; 43 C.J S. Injunctions § 30, p. 462; 43 C.J.S. Injunctions § 87, p. 590; Joyce on Injunction, Vol. 1, Sec. 25; Brown, et al. v. Grant, Tex.Civ.App., 2 S.W.2d 285, n. w. h.; General Tire & Rubber Company, et al. v. Texas Pacific Coal & Oil Company, Tex.Civ.App., 102 S.W.2d 1086, err. ref.; Smiley, et al. v. City of Graham, et al., Tex.Civ.App., 37 S.W.2d 289, 290, err. dis.; Rice & Adams Corporation v. Lathrop, 278 U.S. 509, 49 S.Ct. 220, 73 L.Ed. 480.
This record shows that this particular location is only a short way from the new super freeway and that this particular area is fast developing from a residential section to a commercial or semi-commercial area; that the commercial development in this area has been so extensive that it renders the restrictions of little benefit to the residents in the Santa Rosa Addition. In fact, the situation in that particular area is such that the tearing down of the filling station cannot have any substantial benefit to the residents of the Santa Rosa Addition because of the development in the area, and the filling stations already built on the northwest and the southwest corners; these filling stations are not under any attack; so, we have here a situation where the foregoing facts and circumstances cannot be altered subtantially by the tearing down of the station built by the Davises.
Under the foregoing situation this Court has come to the conclusion that the enforcement of this injunction would be so inequitable, oppressive, harsh and unconscionable that we ought not to give our approval thereto under all the facts and surrounding circumstances here before us.
The Supreme Court of the United States in Parker v. Winnipiseogee Lake Cotton *642& Woolen Company, 2 Black 545, 17 L.Ed. 333, we find this statement:
“A Court of equity will interfere when the injury by the wrongful act of the adverse party will be irreparable, as where the loss of health, the loss of trade, the destruction of the means of subsistence or the nun of the property must ensue." (Emphasis added.) ■
We realize that the foregoing Rule is very general, hut as we understand the undisputed factual situation here it is certain that the destruction of appellants’ property would entail a tremendous loss, and that the property would have little value for residential property or value for anything other than business property; and that the benefits accruing to the residents of the addition would be trivial compared to appellants’ losses. A Court of equity will not require the doing of a useless thing; nor will it lend its powers to accomplish a useless purpose, nor will it grant a decree which does not confer any real benefit or effect any real relief. See 30 C.J.S. Equity § 16, p. 336, and cases there cited. There is another general Rule to the effect that equality is equity, and that it is applicable to burdens as well as to rights and that equality of burden is equity. See 30 C.J.S. Equity § 109, p. 517, and cases there cited. Also see Malott v. City of Brownsville, Tex.Com.App., 298 S.W. 540, pt. 2-3. 15A Tex.Dig., Equity, ®=354.
Since this cause must be reversed and remanded, and since the Texas Company owns the lease and is in possession of the filling station, and since the National Bank of Commerce of Houston has a large indebtedness against the property secured by a valid lien, this Court is of the view that equity and good conscience require that the Texas Company and the National Bank of Commerce be made parties defendant in this cause, in order that each may present such claims, if any they have, as to why appellees’ application for mandatory injunction should not be granted and enforced against them. In Elmendorf v. Taylor, 10 Wheat. 152, 162, 165, 166, 6 L. Ed. 289, we find this statement of the Rule (See Baldwin v. Chase Nat. Bank of City of New York, D.C., 16 F.Supp. 918, quotation at page 920, and cases there collated):
“Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the court itself, and is subject to its discretion. It is not, like the description of parties, an inflexible rule, a failure to observe which turns the party out of court, because it has no jurisdiction over his cause; but being introduced by the court itself, for the purposes of justice, is susceptible of modification, for the promotion of those purposes.”
This Court, after much consideration, is of the view that the mandatory injunction entered by the Court in this cause is too harsh, and would work too great an injury and oppression upon the appellants, and that the benefits to be received by the ap-pellees by destruction of this building are out of all proportion to the loss that would be sustained by the appellants. In Texas our courts adhere to the equitable principles that “In the application of equitable principles, the letter should not be emphasized over the substance of things, for sometimes ‘The letter killeth but the spirit giveth life’ ”. See Texas Employers’ Ass’n v. Cashion, Tex.Civ.App., 130 S.W.2d 1112, 1113, writ ref. It is true that we have not found any Texas case discussing a factual situation comparable to the one before us, but we are now of the view that the application of equitable principles to this factual situation requires us to grant Appellants’ Motion for Rehearing and reverse and remand this cause in order to satisfy the demands of justice. See Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, point 3.
*643Accordingly, Appellants’ Motion is granted and this cause is reversed and remanded.