On Motion for Rehearing.
It is, as contended by appellants, the well-established rule that an injunction restraining the use of property should be issued with the greatest caution, sustained by clear and satisfactory evidence, not only that the applicant will sustain damages, but such damages as he could not recover in a court of law. As said by this court in the case of Iford v. Nickel, 1 S.W.(2d) 751: “The sacred right of the use and enjoyment of property cannot be taken or destroyed in a court of equity without pleadings so plain and clear as to be beyond criticism or dispute, followed by unimpeachable testimony.” As said by Chief Justice Phillips in Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387: “The substantial value of property lies in its use. If the right of use be denied, the value of the property is annihilated and ownership is rendered a barren right.”
A place for music and dancing is not a nuisance per se, and can become such only in the manner in which it is used. It is not alleged nor proved that the hall is frequented by disorderly characters, drunken men, or dissolute women, nor that liquor is furnished or sold to those who attend the dances, the gravamen of appellants’ offense being that 'they keep their dancing place open until between 11 and 12 o’clock, and disturb the slumbers of appellee, his wife, two sons, and a married daughter. He alleges that an orchestra consisting of a piano, violin, drum, and saxophone or other wind instrument makes such noises as disturb appellee, and that the dancers talk loud and clap their hands and park their cars in front of his house and make noises when they leave. He claims a residence west of him, that is rented, and one east in which his daughter and son-in-law live. Appellee alleged that the lights from the dance hall shine into his house and disturb him.
Appellee and Hair are the only witnesses on Josephine street, where they live on the south side, the dance hall being on the north side, who swear to being disturbed by the dance hall. It was shown without contradiction that strings of electric lights were hung along in front of two drink stands on either side of the dance hall, but they did not seem to disturb appellee or his son-in-law, Hair, but the lights on the second floor of the dance hall were very disturbing, for some reason not explained by them. Appel-lee and his son-in-law were on the ground floor of their residences on the same level with the lights on the street. The disturbance took place in the summer time when most people resort to the south side of their houses, but appellee and his son-in-law, as well as his brother, who came over night after night for three weeks, to qualify as a witness, stationed themselves on the north side where the lights could shine in their eyes, and the music and the dancing be heard. Josephine street is a noisy thoroughfare, forming the main artery by which the residents of the north and northwest portions of the city reach Broadway, a much traveled highway. The two sons, the daughter, and the wife did not testify, although it was alleged that they were greatly disturbed. None of the noises of the street, nor the noises connected with appellee’s oil and gas station, disturbed appellee or son-in-law, nor did a phonograph in a not far distant place. Only appellant’s lights and music jarred upon their nerves. All the witnesses as to any disturbance by the music were nervous and unhealthy, abnormally so, except the son-in-law, who had a wife in a delicate condition, and John Trueheart, who, as the music and the bright lights did not go to him, went to them. A man who was given the price of admission to the dance hall by appellee, and went there and danced on one occasion, said the music was not loud, and that he never heard the music outside. He also stated that he had been in appellee’s house while the dance was on, but could not see any dancing in the hall.' It was shown that the music was upstairs at the extreme rear of the hall.
Appellee had a. number of rooms in his house, and yet he occupied the northwest corner room, the hottest in any house in this part of Texas, as every one who resides here well knows. It was also the nearest to the music and the bright lights which disturbed him so much.
Another investigation of the facts convinces this court that not only is the testimony weak and unsatisfactory, but that it is altogether insufficient to sustain a writ of injunction destroying the use of the dance hall as it was used. Appellee has added to his disturbed feelings by seeking places *242where he knew he would be most disturbed and in a house where his two sons and wife were presumably not disturbed, because they did not so testify. He alone, of all the property owners on Josephine street and vicinity, swore that the music and the lights created a nuisance. We do not believe that the use of Valuable property should be destroyed on account of one nervous man, who subjected himself to all the discomforts arising from a heavily used street, and sought to create evidence by having his brother with him and by paying the way of a witness into the dance hall.
The former judgment of this court is set aside, and judgment is here rendered reversing the judgment of the lower court and dissolving the injunction granted by such court.