168 Ky. 471 | Ky. Ct. App. | 1916
Opinion op the Court by
— -Affirming on the appeal and cross-appeal.
The appellees (eight in number) are each residents of the city of Frankfort, being the owners respectively of the houses in which théy each reside with their families, and their property is located, some on Wapping Street, some on Watson Court and that of others on Wilkinson Street in said city. The residences of the appellees, Christine B. South and Frank Chinn, have no intervening residences or buildings between them and the Kentucky River, which runs immediately west of their lots. The residences of the other appellees are further away from the river and for the most part to the east of it, but, as is claimed in the petition, their residences are located sufficiently near to the property of appellants as to be affected by its operation, as is complained of in this suit.
Immediately west of this property and across the Kentucky River the appellants maintain, and have maintained, a rock quarry, which they have operated more
The objectionable acts in the operation of the quarry sought to be enjoined can best be stated in the language adopted in the petition, which is as follows: ‘ ‘ In operating this quarry the defendants have continuously for more than five years last past blasted the rocks from the river cliff, over a space about 150 feet from the bottom of the quarry to the top of it, with heavy charges of dynamite, powder and other such explosives, which have thrown rocks entirely across the river and- upon the property of plaintiffs, thereby endangering their lives, on divers different occasions, .and have repeatedly shaken the houses of plaintiffs upon their foundations, like an earthquake would do; have knocked the plastering from their walls and put their families in fear of their lives. During all of said time, defendants have also operated a rock crusher, with steam, at the same point, crushing the hard stones thrown out of the hillside by said blasts, and thereby filled the air with dust, soot and smoke, which is blown into the homes of plaintiffs, the dust, soot and smoke so thick and penetrating as to injure the furniture of their homes and otherwise render their homes uncomfortable, and the noise from the peculiar machinery of the rock crusher which is run dajr and night, at times, is so great as to drown out and prevent ordinary conversation in the homes of several of plaintiffs, and prevent sleep at night.”
The answer consists of a general denial, and in another paragraph an effort is made to rely upon a prescriptive right to so manage and use the quarry, as it
After very extensive preparation and a submission of the cause, the court adjudged in substance, that appellants be perpetually enjoined from discharging or permitting to be discharged such blasts of dynamite or other explosives in the operation of the quarry as would jar the houses of the plaintiffs, or any of them, “to such an extent as would interfere with the comfortable or reasonable enjoyment of their homes, or houses,, or to cause said houses, or any of them, to vibrate or shake, or to cause the plastering or tiling, or other coverings of the walls, or ceiling in any of said houses to crack or fall or be in any way damaged, or cause other injury to any of said houses; or cause rocks or dirt or other debris to be thrown on the property of plaintiffs, or any of them.” The appellants were further ■ enjoined from “making or permitting to be made at night any noise by the machinery at the quarry, or in the operation thereof, which would disturb or interfere with the peace and quiet of the homes of plaintiffs, or any of them, or with the rest or sleep of the plaintiffs, or any of them, or their families, or any of them.” The court declined to enjoin the appellants from the operation of the rock crusher. From so much of the judgment as granted relief to appellees, the appellants appeal; and from the refusal of the court to restrain in any manner the operation of the rock crusher, the appellees prosecute a cross-appeal. 1
The first ruling of the court, brought in question by a special demurrer to the petition and by a motion to
Section 22 of our Civil Code of Practice is:
“All persons having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiffs, unless it is otherwise provided in this Code.”
Mr. Newman in his work on Pleading and Practice, section 153, in commenting on this section of the Code, supra, says:
“So, also, different persons owning separate tenements affected by a nuisance may unite as plaintiffs to restrain by injunction its continuance.”
This rule of practice has also been upheld by this court in the following cases: Louisville Coffin Co. v. Warren, 78 Ky., 400; Seifried v. Hays, 81 Ky., 377; Palestine Building Association v. Minor, 27 Ky. L. R., 781; Beckham v. Brown, 19 Ky. L. R., 519. Many other authorities might be' cited, but the rule permitting the right of persons similarly circumstanced and affected by the acts complained of to unite in one petition for relief is so universally settled as to render further consideration of the question unnecessary.
That this character of action may be maintained where the facts justify it, is equally as well settled as the question just disposed of. The right to the remedy by the individual citizen is recognized by Mr. Pomeroy in his work on Equity Jurisprudence in section 1349, wherein he says:
“A public nuisance will also be restrained at the suit of a private person who suffers therefrom a special and particular injury distinct from that suffered by him in common with the public at large.”
And the same author again says in section 1350:
“It is a well settled doctrine that equity will restrain a private nuisance at the suit of the injured party. * * * The equitable jurisdiction is therefore based upon the motion of restraining irreparable ’mischief, or*476 of preventing -véxatious litigation, ór a multiplicity of suits.”
The same right to such relief is found in all standard works on equity jurisprudence or equitable relief. And in Cyc., Vol. 29, page 1191, the doctrine is thus stated:
“The question in all cases is whether the annoyance produced is such as to materially interfere with the ordinary comfort of home existence. It is not of course necessary that the annoyance and discomfort should be so great as to actually drive the person complaining thereof from his dwelling; but if the alleged injury be a plain interference with the ordinary comforts and enjoyments, there is a nuisance, no matter how slight the damage, provided the inconvenience be actual and not fanciful. ’ ’
Many cases and authorities almost innumerable could be cited from other jurisdictions, but which we think is unnecessary. The maxim: “Sic utere túo ut alienum non laeda-s,” is an ancient as well as a just rule and is patterned after the one which is elsewhere more comprehensively stated: “And as ye would that men should do to you, do ye also to them likewise. ’ ’ The right to this remedy, under the pleadings and proof here, has on numerous occasions been upheld by this court, and indeed, so far ‘as we can learn, has never been denied by it. Louisville Coffin Co. v. Warren, 78 Ky., 400; Seigfried v. Hays, 81 Ky., 377; Palestine Building Association v. Minor, 27 Ky. L. R., 781; Phillips v. Elizabethtown B. & C. Factory, 15 Ky. L. R., 574; Alexander v. Tebau, 132 Ky., 487; Louisville Home Telephone Co. v. City of Louisville, 130 Ky., 611; Peacock v. Spitzelberger, 16 Ky. L. R., 897; Green v. Asher, 10 Ky. L. R., 1006, and many other cases which might be cited.
The testimony taken and heard upon the trial showed substantially the following facts: The nearest house of any of the appellees to the quarry is 780 feet, the Kentucky River intervening. The quarry in which the blasting is done has' a perpendicular facial surface of some 200 or more feet wide and something like 150 feet high and faces practically squarely towards the appellees’1 property. For some years before the filing of the'suit very heavy explosions of dynamite would -frequently be made at the quarry and on some occasions flying rock would light upon some of the houses of the appellees, but not upon all of them, and other and larger roeks
“It is not denied that where private citizens suffer peculiar injury apart from that of the general public from nuisances, that they may maintain their action in equity to abate it, although the public, through the attorney general or Commonwealth attorney, may also have the right to proceed in the name of the Commonwealth to abate the nuisance.”
And also in the opinion in the case of Creen v. Asher, supra, wherein this court, through Judge Pryor, in upholding the right of the citizen-to maintain the action, although the .nuisance might in some respect be a public one, says:
“It is well settled that a public nuisance may become a private nuisance when special injury arises, and particularly when it is that character of nuisance that is continual, and affects the party complaining to a much greater extent than the public generally.”
Many other cases from this court might be cited in substantiation of the point, but it is manifestly unnecessary. In the eases to which we have hereinbefore referred, the acts constituting the nuisance, as well as the character of the rights of the plaintiffs which were affected thereby, were different in each case. In many of them the atmosphere was polluted by noxious odors to such an extent as to render the occupancy of .the prem
“But where a right is injured, no just or adequate measure of damages can be arrived at. It may, or it may not be, of present special value; it may, or it may not be, of considerable prospective value; in either case a jury will seldom give more than nominal damages for its violation, which is utterly inadequate to protect the [right. ’ ’
“But in case of an injury .to a right, that is a substantial right of property, which, as has heretofore been explained, is an incident of real property belonging or annexed to it, either as a material incident, or by grant or prescription, where the right is clear and the nuisance established, an injunction will always be granted to protest the right, as well as to prevent irreparable injury.”
It is insisted, however, by appellants that the right to the relief by injunction in favor of appellees should have first been established by a proceeding at law. In other words, that the existence of the nuisance, as well as the interference by it with the rights of the appellees, should be determined by a trial at law. This contention cannot be maintained. It is denied by all modern authority, and whatever may have been the ancient rule when there existed great rivalry between courts of equity and courts of law, it is sufficient to say that the rule contended for has no modern authority, text writer or judicial utterance, in its favor when the facts are similar to those we have here. In the work on Nuisances to which we have referred, in section 785 upon this subject, it is stated:
“It is not necessary that the right should first be established in law in all cases, as if the right is clear and unquestioned and its violation is estáblished or practically conceded, an injunction will be granted if the nature of the injury is such as would warrant an injunction after a verdict.”
But it is a sufficient answer to this contention to say that in none of the cases emanating from this court has the doctrine contended for been applied, and wherever it is found to prevail there will also be found to exist the common law rules of procedure governing the practice in equity and ordinary cases, and not within jurisdictions having the character of code practice which prevails in this State.
A reversal is urged because it is claimed that some of the appellees “moved to this nuisance,” but this posi
“Neither will the fact that when he-erected his house no houses were near, but that the plaintiff has come to his works, in any measure operate to protect him, for he should have taken the precaution to purchase enough of the surrounding property when he built his works to prevent the possibility of such results.”
Moreover, in the instant case, by far the larger per cent of the appellees were the' owners off and occupying their premises long before the appellants commenced the operation of the quarry, and all were such before the character of acts enjoined were commenced.
It is likewise urged as a ground for reversal that the appellees are deprived of their remedy because of their laches. In other words, that by remaining quiet and by acquiescing, they are equitably estopped to make complaint; and as a further right to insist upon this defense, it is claimed that appellants expended a considerable sum of money in the investment of and equipment of their plant. The facts are that the tract of land upon which the quarry is located consists of about 45 acres, which cost appellants $2,000.00. They have spent for machinery something like $2,000.00 or perhaps $2,500.00. This machinery is from six to nine years old and can be easily and readily moved to any other place to which appellants might see proper to carry it. The land, of course, is still there and will remain there whatever may be the action of the court. Furthermore, the testimony in regard to the objectionable management of this quarry shows that the acts producing the nuisance complained of, and enjoined, do not grow out of the nature of the business, but grow out of the way and manner in which it is conducted, and that this particular way and manner has not been engaged in by appellants until the last few years preceding the filing of this suit. The conduct complained of is a thing which might, “or might not, become a nuisance, dependent entirely upon the extensiveness of the blasting and the consequent noise and jarring resulting therefrom, and the molesting noise at night, and it is this manner of use which was sought to be and was enjoined. There is no such acquiescence of lashes shown as to deprive the plaintiffs of the injunctive relief.
Upon the cross-appeal hut little need he said. We have seen in the course of this opinion that the nuisance must he thoroughly established by convincing proof. The injuries resulting from the operation of the rock crusher are not established by the character of testimony that we think the law requires in order to obtain the relief soug’ht, and it, therefore, results that the denying of the relief to the appellants upon this ground was also proper.
It therefore results that the judgment appealed from should be, and is affirmed, and that the part of it called in question by the cross-appeal should also be, and is affirmed; all of which is so ordered.