dissenting.
I respectfully dissent from the holding by the majority wherein it holds (1) that the judgment of the trial court and the Court of Civil Appeals in favor of Limestone Products Company should be affirmed, and (2) that the theory of recovery is not a proper theory.
The record reflects that the petitioners duly excepted and gave notice of appeal by filing proper appeal bond and carried the appeal forward in its brief in the Court of Civil Appeals.
It is the contention of the petitioners on this point that where there has been a nuisance or continued existence upon demised premises, the lessor and lessee may both be liable for the damages resulting therefrom — the lessee in the actual occupation of *604the premises, if he continues the nuisance after notice of its existence and request to abate it; and the lessor, if he first created it, and then demised the premises with the nuisance upon them, and at the time of the damage resulting therefrom is receiving a benefit therefrom by way of rent or otherwise. I agree with the petitioners.
The record reflects that Limestone Products Company, the owner, constructed the lime plant in 1946 and operated it until April 1, 1953, the operation of the plant having begun in 1949. It is true that changes in the plant were made by the lessee, Texas Lime Company, after it began its operations, but it cannot be said that such changes bring the case within the rule stated by the majority, that the owner, Limestone Products Company, was free of fault. The majority opinion seems to recognize that the facts could have raised an issue as to the liability of the owner because it is pointed out that no complaint is being made here of the trial judge’s failure to submit fact issues to the jury as to the liability of the owner. If this case is going to be reversed and remanded for a new trial, then I think it should be remanded as to all parties and this Court, in its advisory opinion, should instruct the trial court that if the facts are the same on another trial, it should give the special issue which was requested in the first trial. That issue reads as follows:
“Special Issue No. Three
“If you have answered the above and foregoing Question No. One ‘yes’ then and in that event only answer the following question:
“Do you find from a preponderance of the evidence that the Defendant Limestone Products Company, as owner of the plant in question, is unreasonably allowing and permitting limestone dust and foreign materials to be discharged and escape from their premises so that they are carried in substantial ouantities by the wind and air currents onto the property of the Plaintiffs, if you have so found?
“Answer ‘They are unreasonably allowing it’ or ‘They are not unreasonably allowing it’.”
Instructions should also be given as to whether the four companion issues should be given. In my opinion the trial court erred in failing to submit the five issues.
*605The petitioners, therefore, are not contending that they are entitled to judgment against the owner as a matter of law. The case should be reversed and remanded because of this error. The majority opinion does not hold that the evidence shows that the owner was not at fault after leasing the premises to the respondent, Texas Limestone Company. I am of the opinion that the majority view demands a reversal for the reason that the change in the operation of the plant made by the Texas Limestone Company in 1955 raises a fact issue as to whether such change eliminated all fault and thereby relieved the Limestone Products Company of liability because of the fact that it was no longer creating a nuisance. If the case is to be remanded to the trial court, the petitioners are entitled to their several causes of action against both respondents regardless of the theory upon which it is tried. However, under my view of the case the theory upon which the case was tried was a proper one and I am of the opinion that the evidence supports the issues submitted to the jury, the answer to such issues being the basis for the judgment entered in favor of the petitioners in the trial court. Under this view, the petitioners could, if they so desired, file a motion in this Court waiving their claim of error as to the Limestone Products Company.
In the event the majority does not agree that the evidence supports the findings of the jury, I still do not agree with the majority holding that the “stock of merchandise” theory is not applicable. I think it is a proper theory of recovery and that sufficient data could be obtained as to each automobile so as to enable a jury, with a reasonable degree of certainty and exactness to ascertain the loss. That is all that is required. Of course, elements of damage which are purely speculative and conjectural cannot and should not be allowed and it is only such elements of damage as can be ascertained with reasonable certainty that should be taken into consideration. It is simply a matter of proof and there is no reason why the petitioners should be deprived of their cause of action based on this theory. I think under Rule 40, Texas Rules of Civil Procedure, it was proper for the plaintiff s-petitioners to bring this suit jointly against the defendants-respondents, and, although the trial may be tedious and the record voluminous, nevertheless the case can be tried in one lawsuit and thereby avoid a multiplicity of lawsuits and at the same time reach a just result by following the well settled rules of pleadings and evidence.
Opinion delivered October 16, 1957.