112 Ky. 507 | Ky. Ct. App. | 1902
Opinion of the court by
Affirming.
Appellee, Wilborn, is the owner of a lot in the town of Albany adjoining on tbe north the lot on which the Christian church stands. He proposed to build on his lot, 27 feet from- the church, a private stable, 45 feet long, 32 feet wide, and 14 feet high to the plates. Appellant Perkins owns a lot on the south side of the church, on which is a stable 41 feet from the church, iand between it and the church is his privy. Perkins also owns residences on the opposite side of the street. The church and Perkins brought this suit to enjoin appellee from.' erecting his stable, on the ground that the use of the stable would create an offensive odor, which would impair thé use of the church property for purposes of worship; that in warm weather it would cause an accumulation of flies, which would disturb the congregation; that it would increase the hazard from fire to the church building, which was a wooden structure; that the stable would front on the'Street, and would cause an obstruction of the sidewalk, from the placing of wagon bodies, vehicles, wheels, etc., in front of it; and that the noise from the stock, and the feeding of them, would disturb the congregation; and that these things would greatly impair the value of Perkins’ property on the opposite side of the street. The defendant filed an answer in which he controverted the allegations of the petition, and, in addition, alleged affirmatively that
Tbe proof shows tbat appellee is a teamster by trade; tbat be runs several wagons, in wbicb be hauls for others, keeping from four to ten horses and mules. He had bad a smaller stalble On this lot for some years, which be tore down when be began tbe erection of tbe one in contest.
In 1 High, Inj., section 742, tbe rule is thus stated: “When tbe injury complained of is not per ,se a nuisance, but may or may not become so according to circumstances, and when it is uncertain, indefinite, or contingent, or productive of only possible injury, equity will not interfere. Thus tbe erection of a wharf, a railroad bridge, a planing mill, a livery stable, or a turpentine distillery will not be enjoined where tbe injury is only a possible and contingent one.” In Dargan v. Waddill, 31 N. C., 244, 49 Am. Dec., 421, Chief Justice Ruffin said: “It is true tbat a stable in a town is not, like a slaughter house or a sty, necessarily and prima facie a nuisance. There must be places in towns for keeping the horses of the' people living in them or resorting thither, and, if they do not annoy others,
Judgment affirmed.