Opinion
No. 3578.
December 23, 1937.
Appeal from District Court, Gregg County; Will C. Hurst, Judge.
Suit by Mrs. W. H. Henderson and another against the City of Longview and another. From an order denying a temporary injunction, plaintiffs appeal.
Affirmed.
Bramlette Levy, of Longview, for appellants.
Fred Erisman, of Longview, for appellees.
Mrs. W. H. Henderson and Jake R. Webb brought this suit against Austin Road Company and the City of Longview for injunctive relief. A temporary injunction was sought and denied. From the order denying same this appeal is prosecuted.
The Austin Road Company, under contract with the State Highway Commission, is doing certain construction work on Marshall avenue in the City of Longview. The construction work complained of by the plaintiffs is a part of the construction of State Highway No. 15 and United States Highway No. 50 through said city. The work being done was to provide proper drainage along Marshall avenue. The plaintiffs each own property abutting on said avenue, and it is alleged the purpose of the ditch being dug by the Austin Road Company was to carry water collecting on Marshall avenue and emptying same upon plaintiffs' property, greatly and irreparably damaging same.
It is apparent the plaintiffs are attempting to enjoin the performance of a governmental function in which the public and its general welfare are interested. There is nothing to show the public necessity and convenience should be subordinated to the private interests of the plaintiffs by the injunction sought.
The situation is one where the granting or denial of the injunction is discretionary with the court. 24 Tex.Jur., Injunctions, §§ 84, 85, and 96, and the cases cited.
It is quite evident the plaintiffs have an adequate remedy at law for the recovery of damages compensating them for the injury and damage which may be caused by the acts complained of. There is no allegation that defendants are unable to respond in damages. For this further reason the temporary injunction was properly denied. 24 Tex.Jur., Injunctions, §§ 57 and 58.
For the reason indicated the judgment should be affirmed, and it is so ordered.