Perry BROWN, Petitioner, v. GULF TELEVISION COMPANY, Respondent, 306 S.W.2d 706

NORVELL, Justice. While this is a plea of privilege case, we have jurisdiction because of conflicting holdings by the Courts of Civil Appeals set forth in Rogers v. Scaling, Tex.Civ.App. Fort Worth, 285 S.W.2d 259 and Gulf Television Company v. Brown, Tex.Civ.App. Galveston, 301 S.W.2d 256. See Articles 1728 and 1821, Revised Statutes 1925, as amended, Acts 1953, 53rd Leg., p. 1026, ch. 424. Articles 1728, 1821, Vernon’s Ann.Tex.Civ.Stats. State v. Wynn, Tex., 301 S.W.2d 76.

Article designations hereinafter used refer to Vernon’s Ann.Tex. Stats. It appears from the respective opinions that both suits were based upon the erection and maintenance of structures or devices upon the premises of the defendants which allegedly interfered with plaintiff’s use of their properties. In the Fort Worth case an advertising sign was involved. In the Galveston case which is presently before us, complaint is made of a television antenna tower erected by defendant upon land owned by it. In Rogers v. Scaling the Fort Worth Court [285 S.W.2d 260] held that exception 14 of

Article 1995, Vernon’s Ann.Civ.Stats. relating to damages to land controlled the venue of the suit although the plaintiff “alleged that he had no adequate remedy at law and prayed for a mandatory injunction requiring the defendants to remove the (offending) sign, and, in the alternative, asked for damages in the sum of $10,000”.

In the present case, the opinion of the appellate court sets out the petition of the plaintiff Brown, which discloses that he prayed for a “mandatory injunction by which the Court order the Defendant to remove its * * * television antenna tower; and in the alternative * * * that it recover from the Defendant judgment for his damages, * * * in the sum of Two Hundred Fifty Thousand Dollars, * * *.” [301 S.W.2d 259.] The Galveston Court held that the principal and primary purpose of the suit was to obtain relief by way of injunction and hence venue was not controlled by exception 14 of

Article 1995. In Rogers v. Scaling it was also held that a petition which alleged that the erection of a structure or advertising device upon defendant’s property which resulted in injury to plaintiff’s business and a depreciation in the value of plaintiff’s lot for business purposes was a suit for damages to land within the meaning of exception 14,

Article 1995. In the instant case, the Galveston Court has held that the legal cause of action stated alternatively in plaintiff’s petition was actually one for consequential damages to plaintiff’s business flowing from a claimed illegal interference by defendant through the use of his own land and was not a suit for damages to land within the meaning of exception 14 of

Article 1995. We are thus confronted with a double conflict, so to speak. This is not a case in which a later decision of a court of civil appeals can be reconciled with an earlier one of another court of civil appeals by regarding one of two stated bases of decision as being dicta under the rule announced in Benson v. Jones, 117 Tex. 68, 296 S.W. 865. Whichever ground be taken for the basis of the decision of the Galveston Court, it necessarily conflicts with a basic and essential holding expressed in Rogers v. Scaling. It thereupon becomes our duty to settle the points of conflict. The pertinent portions of the statutory articles involved read as follows:

Article 1995, § 14. “Lands. — Suits for the recovery of lands or damages thereto, * * * must be brought in the county in which the land, or a part thereof, may lie.”

Article 1995, § 30. “Special venue.— Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 4656. “Jurisdiction for trial. Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered; writs of injunction for other causes, if the party against whom it is granted be an inhabitant of the State, shall be returnable to and tried in the district or county court of the county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts.

If there be more than one party against whom a writ is granted, it may be returned and tried in the proper court of the county where either may have his domicile.” The directions in both

Article 1995, § 14 and

Article 4656 are stated 'in mandatory terms. They need not be and have not been construed as conflicting. Whenever it can properly be said from the pleadings that the issuance of an injunction is merely ancillary to a judgment awarding a recovery of lands or quieting the title thereto,

Article 1995, § 14 has application. Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co., Tex.Com.App., 267 S.W. 688 (upon rehearing). On the other hand where the petition discloses that the issuance of a perpetual injunction is the primary and principal relief sought, the special venue provisions of

Article 4656 control. “Where the venue depends on the nature of the suit, such venue is ordinarily determined by the nature of the principal right asserted and the relief sought for the breach thereof.” Lone Star Mutual Life Association v. Bruno, Tex.Civ.App., 101 S.W.2d 1059, 1060; Page v. Kilgore, Tex.Civ.App., 181 S.W.2d 730; Boyd v. Crabb, Tex.Civ.App., 205 S.W.2d 606; Miller v. Howell, Tex.Civ.App., 234 S.W.2d 925.

The existence of a certain set of facts may entitle a litigant to a choice between legal and equitable remedies and it may seem that no venue distinction between remedies should logically be drawn if convenience of trial for litigants and witnesses be the true basis of the venue exception, but the Legislature has expressly provided a special venue for injunction suits and in cases where the plaintiff alleges that he has no adequate remedy at law and hence is entitled to and requests injunctive relief, it would seem that he chooses the equitable remedy as and for his primary relief.

The venue of the suit is consequently controlled by

Article 4656 rather than

Article 1995, § 14. O’Connor v. Shannon, Tex.Civ.App., 30 S.W. 1096, app. wr. error dismissed; Scott v. Noakes, Tex.Civ.App., 277 S.W. 735, app. wr. error dismissed; Fernandez v. Shacklett, Tex.Civ.App., 1 S.W.2d 675; Lyday v. Ledbetter, Tex.Civ.App., 24 S.W.2d 68; Bowman v. Muncy, Tex.Civ.App., 197 S.W.2d 866. We are also of the opinion that plaintiff’s alternative claim to damages cannot be properly classified as coming within the provisions of

Article 1995, § 14. From an early day in this state the language of exception 14 and its predecessor sections has been construed as referring to “injury to the possession, or to the freehold or estate.” Miller v. Rusk, 17 Tex. 170; Thomson v. Locke, 66 Tex. 383, 1 S.W. 112; Knight v. Houston & Texas Central Railroad Co., 93 Tex. 417, 55 S.W. 558. It does not include damages for loss of profits to a business located on real property, or losses occasioned by a decrease in market value of land used for business purposes when there is no invasion of the land itself or a right appurtenant thereto.

City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466; Ross v. Paine, Tex.Civ.App., 88 S.W.2d 736, app. wr. err. dismissed; Posey v. Williamson, Tex.Civ. App., 134 S.W.2d 335; Carleton v. Dierks, Tex.Civ.App., 195 S.W.2d 834; Miller v. Howell, Tex.Civ.App., 234 S.W.2d 925; Stull’s Chemicals, Inc., v. Davis, Tex.Civ. App., 263 S.W.2d 806; Stanolind Oil & Gas Co. v. Smith, Tex.Civ.App., 290 S.W.2d 696. Being of the opinion that the Galveston Court of Civil Appeals was correct in its decisions upon the points of conflict discussed, its order sustaining respondent’s plea of privilege is affirmed. .

A petition for ⅝ writ of mandamus to require certification of questions in Rogers v. Scaling was overruled by this Court because such petition was filed after the effective date of the 1953 amendments to Articles 1728 and 1821 which rendered the writ of error available in case of conflicting decisions. . The relief awarded plaintiff after a trial on the merits was by way of permanent injunction. See Rogers v. Scaling, Tex.Civ.App., 298 S.W.2d 877, wr. ref. n. r. e. .

Opinions of the Courts of Civil Appeals herein cited are for the most part plea of privilege cases in which neither an application for writ of mandamus nor writ of error was filed in this Court. In cases wherein such applications were filed, the action of this Court is indicated.