53 So. 272 | Ala. | 1910
Appellee filed his bill to enjoin appellant from establishing and maintaining a cemetery upon certain land owned and acquired by it for that purpose. The evident theory of the bill is that establishing and maintaining the cemetery under the conditions set forth in the bill would constitute a nuisance, which the court is asked to enjoin.
Among other things, it is alleged that the land in question, proposed to bé devoted to the purpose of a cemetery, adjoins the lands and residence of complainant; that the land in question is higher than complain
It is also alleged in the bill that a certain road known as the Bias Road traversed the land in question, and intersected a public road some two miles distant; that this Bias road had been worked from time to time by the inhabitants of that locality for the convenience of persons passing and repassing, and that it had been so worked for more than 50 years; that said Bias road is the only possible avenue of ingress to and egress from orator’s property; that respondent as a part of its cemetery had fenced up a part of this road. The bill Avas subsequently amended — evidently to meet some of the objections pointed out to a similar bill in the case of Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Rep. 14, by Chief Justice Brickell. The amendment more particularly described the character of the soil and the topography of the complainant’s and respondent’s lands, as Avell as the subterranean streams of water
The respondent interposed demurrers to the original, and to the amended bill. The chancellor overruled the demurrer to the amended bill; and from that decree this appeal is prosecuted.
The evident theories of the bill are two: One, to prevent a nuisance, by enjoining the use of the lands in question for a general cemetery; and the other to abate a nuisance by compelling the respondent to remove, from around the land in question, the fence which obstructs the road. While the parties and the subject-matter are the same, and the bill in one phase seeks to prevent a nuisance, and in the other to abate a nuisance from the same land, the nuisance and the rights of action to prevent the one .and abate the other are entirely separate and distinct. The one will exist entirely separate and distinct from the other. If the cemetery will constitute a nuisance, it will be such with or without the fence. If the fence is a nuisance by obstructing a highway, it is such whether the land is nsed for a cemetery or not. The injuries suffered, or to be suffered, by the complainant, from the two wrongs, are entirely separate and distinct, and independent one from the other. One of the alleged nuisances may affect the public, and the other' not. One may affect one part of the public, and the other another part. The bill does not seek “alternative or inconsistent reliefs,” but it in one suit seeks two distinct, independent, and separate reliefs. The -two wrongs complained of are not at all dependent one upon the other. The prevention of the one would
As before stated the two reliefs asked are not alternative, nor are they inconsistent; but they are separate and distinct. While the defect here pointed out — that is, the combining of two causes of action in one bill— is usually called multifariousness, it is as Mr. Daniel and Mr. Sims both observe more accurately, a misjoinder of causes. As pointed out by Mr. Sims in an apt quotation, “there is a rule arising out of the constant practice of the court that it is not competent where A. is sole plaintiff and B. is sole defendant for A. to unite in his bill against B. all sorts of matters wherein they may be mutually concerned. If such a mode of procedure were allowed, we should have A. filing a bill against B. praying to foreclose one mortgage, and in the same bill praying to redeem another, and asking many other kinds of relief with respect to many other subjects of complaint.” — Sims’ Ch. Pr. p. 143, § 232. The evils to flow from a construction of the statute which would allow the joining of several causes of ac
We will now consider each of the two causes of action presented by the bill, as we cannot know which complainant will eliminate by his amendment. The averments of the bill are insufficient to authorize the court to enjoin the use of the property in question as a cemetery. The bill shows no actual injury or detriment to complainant on account of such use; in fact, it does not attempt to do so, for the reason that the property has not yet been so used. The injury or detriment attempted to be alleged is wholly expectant and problematical. Nothing but the gratuitous conclusions of the pleader shows that any injury or detriment to complainant will necessarily result from the use of the land in question for the purpose of a cemetery.' It is very true that the injury contemplated or expected may happen, if the facts alleged are true (and on demurrer they must be so treated); but this is not enough to
It is well-settled law that percolating filthy matter from the premises of a party who suffers it through the soil and upon the premises of an adjacent owner, to the injury of the latter, is an actionable nuisance. But in all decided cases of this kind the exclusion of such filth was practicable by a proper use of the premises; and in all such cases the injury must be positive and substantial, and such as fairly imposes upon the party causing it the duty of restraint. The movements of subsurface waters are so obscure that the rights of contiguous owners of land through which such waters flow cannot be well defined or preserved. Judge Cooley, in .speaking of such waters, says: “They do not often have a well-defined channel, and it is not easy in many cases to determine in what direction their movements tend. If corrupted at one point, the effect may be confined within very narrow limits, while at another.
The Supreme Court of Illinois, writing to a case very much like this, said: “There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. Now, the town of Lake Yiew is a rural township, containing about 11 sections or square miles of territory. It is therefore impossible to hold that a cemetery anywhere ivithin the limits of the town must be necessarily a nuisance, and can be prohibited in advance as such. A cemetery may be so placed as to be injurious to the public health, and therefore a nuisance. It may, on the other hand,' be so located and arranged, so planted with trees and flowering shrubs, intersected with drives and walks, and decorated with monumental marbles, as to be not less beautiful than a public landscape garden, and as free from all reasonable objection. The power to prohibit the establishment of cemeteries except by the authority of the trustees' cannot be considered as falling within the power to abate and remove nuisances.”
As to the other cause of action set forth in the bill— obstructing a highway — the amended bill is indefinite and uncertain. It does not clearly appear whether the road obstructed is a public or a private one. While it is alleged that it has been used as a way for more than 50 years, it is not certain whether this user was adverse or was permissive. If it was a private road, and was used only by permission of the owners of the soil, and such use was not adverse, no length of time would bar the right of the owner to close it up or to prevent
Reversed and remanded.