7 R.I. 87 | R.I. | 1861
This demurrer cannot be sustained, for want of equity in the bill. The bill states, in substance, that the stable which is in the course of erection by the defendant, is designed to be used by him as a livery stable; and that being so used, it will, from its proximity to his dwelling house, hotel and stores, and by its disagreeable and unwholesome effluvia, its noise, flies, and other nuisances, cause him irreparable damage, by rendering his house untenantable, by breaking up the business and by diminishing the rents of his hotel and stores. These are allegations *94 of facts, into the truth of which we are not to enquire upon this demurrer; but supposing them to be true, to ask ourselves, if the defendant's stable would not be a nuisance against which the complainant would be entitled to equitable relief, not, indeed, in the special mode prayed for, but in some appropriate mode, under his prayer for general relief? We cannot say, as a matter of law, that a livery stable placed so near the complainant's dwelling house and hotel will not, by the unwholesome and disagreeable effluvia attributed to it in the bill, produce all the effects therein alleged, destructive to the complainant's property; and the demurrer admits that it will, as a matter of fact. If this be so, how can we say, that a case may not be made out under the bill which will require us to interpose for the complainant's protection, — which is the test whether a bill in equity is demurrable for want of equity, as decided in Dike andanother v. Greene, 4 R.I. Rep. 285.
A destructive nuisance may certainly be enjoined by a court of equity, although it is also the subject of ordinary legal redress. Nor is it true, that a bill to enjoin such a nuisance is demurrable, because it does not state that the rights of the parties, in support of the bill, have been settled by a judgment at law. It may be very proper that they should be, if uncertain, before the court affords its specific relief; but the title of the plaintiff to the relief he asks may be admitted by the answer, as it is by this demurrer, and, then, why should it be further ascertained, to induce the action of the court? As late as 1851, Sir Richard Kindersley, Vice-Chancellor, said, that it was true that equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law, — and that there was no such thing as an equitable nuisance, — but asks, "Is it a ground of demurrer that the matter has not yet been tried at law? It may be ground, and is ground very often, for refusing an injunction, upon motion; but is it ground of demurrer? No, I am not aware of any cases in which it has been so determined."Soltau v. De Held, 9 Eng. L. Eq. 117; and see Sprague v.Rhodes and others, 4 R.I. Rep. 301.
Our attention was directed by the counsel for the defendant to two cases, in which it was said that demurrers were sustained to *95 such a bill as this: Kirkman v. Handy, 11 Humph. R. 406, andHarrison v. Brooks, 20 Geo. 537. Upon looking into these cases, we find, that in the first, the demurrer was disallowed, and the bill went to a hearing; and in the other, that the case came before the Supreme Court of Georgia, after answer, upon exceptions to the rulings of a judge of the Superior Court of that state, upon a motion to dissolve, or modify by giving security, a special injunction that had been granted in it, upon the ground, that the equity of the bill had been fully met by the answer, which the judge below had overruled.
In fine, without touching the other questions which have been argued, and without expressing an opinion upon the merits of this case, which we reserve until we can know what in truth the case is, we can only express our regret at the delay caused by the interposition of this demurrer, and overruling it, order the defendant to answer the bill; the question with regard to the costs of this term being reserved.
