123 So. 213 | Ala. | 1929
Appellants' bill in chancery seeks to enjoin the construction and operation of a gasoline filling station and tire repair shop on the lot adjacent to his dwelling on Government street in the city of Mobile. The averment is that the filling station and tire repair shop will occupy the lot at the corner of Government and Bayou streets, 55 by 107 feet. Appellant Bloch's lot fronts on Government street with an "L" over to Bayou, and a diagram of the neighborhood, submitted in his brief — and which we think we may refer to for this limited purpose, since there is no dispute about the facts — shows appellee's lot as having an equal frontage on Government street. Members of appellant's family and Virginia Thomas, a neighbor, join him in the bill and in this appeal taken from a decree sustaining a demurrer to the bill. It is averred that the part of the city at the intersection of the two streets named has been for 40 years or more residential in character, and that the lot on which defendant McCown is erecting the structure or structures complained of was until recently an "old residential property known as the Oliver J. Semmes homestead." It is averred that "the inevitable incidents to and attendant upon the operation of a gasoline filling station are that there will be a continuing emission of odors, vapor, dust, smoke, gas and noise, and there will be thrown from the headlights of automobiles entering upon or leaving said filling station glaring lights from said headlights of said automobiles flashing at unreasonable hours of night into the bedrooms and other portions of the premises of complainants; and any or all of said incidents and happenings will inevitably disturb the peace and comfort of your complainants," and, further, that "the operation of a tire service station on said lot will inevitably be attended by loud and disagreeable noises due to the manipulation of steel or other metal parts of automobile wheels with hammers or other instruments and other noises incident to the operation of a tire shop; all of which will inevitably disturb the peace and comfort of your complainants." The bill shows that complainant, as soon as he was informed of defendant's purpose to erect the structure or structures complained of gave defendant McCown notice of his protest and purpose to resist the building and the contemplated business therein, notwithstanding which defendant is now proceeding to build.
Section 9271 of the Code, affirming a principle of precedent general law, declares that: "A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man."
It is hardly necessary to repeat the further definitions to be found in our books or the general observations respecting the limitations which the courts impose on the uses of landed property out of deference to the rights of adjacent or neighboring property owners. Our recent cases of Kyser v. Hertzler,
The court knows what a filling station and repair shop is, and is of opinion that the business indicated by these terms should not, over the objection of adjacent or neighboring property owners — the force of their objections depending largely upon propinquity — be intruded upon a section previously devoted to desirable residential purposes. A business, lawful in its nature, as is the business proposed by the defendant in this cause, and not a nuisance per se in one locality, may become a nuisance when conducted and maintained in another which is residential in character. Higgins v. Bloch,
There seems to be some conflict in the adjudicated cases; but most of those which are thought to differ from the view here taken may be discriminated from this by reason of peculiar facts. We think the conclusion indicated in what we have said best accords with reason and right, and it does not lack support in the decisions of other courts. Huddleston v. Burnett,
We hold, therefore, that a filling station may be a nuisance per accidens by reason of its location or other circumstances, e. g., in this case, the proposed operation of a tire repair shop in connection; and that, considering the averments of the bill in this cause, showing peculiar injury to appellants, the demurrer was due to be overruled.
It is suggested in the brief for defendant (appellee) that his place can only become a nuisance by reason of the future operation of his proposed business therein, and that complainant's application for relief is premature and should be deferred until such time as the court may be informed as to the manner in which defendant's business at the place in question will be conducted. This is to ignore the location and the court's common knowledge of the inevitable consequences to follow upon the conduct of the business which defendant proposes to carry on, however well conducted, not to mention the specific averments of the bill. And in this connection it was incumbent on complainant to consider whether, if he stood by, without protest or preventive action, and allowed defendant to construct his building, which, we may assume, would be peculiarly and expensively adapted to the conduct of the proposed business, he would then be estopped to deny defendant's right.
Further, we note, that the injury complained of, if defendant should be allowed to proceed, would be irreparable within the meaning of the authorities on the subject of nuisance; that is, the annoyance would be of such constant and frequent recurrence that no fair or reasonable redress could be had in a court of law. First National Bank v. Tyson,
We are not unmindful of the right of the owner of town or city property to maintain a garage for his own use. The annoyance, if any, to result from that character of structure and its reasonable private use, can in reason only be occasional and incidental. No question as to that right is involved. In the case presented by the bill it may be assumed that the annoyance inseparably connected with the business proposed would be repeated at frequent intervals during the day and far into the night.
We have considered the case alleged in appellant's bill. The facts remain to be proved, though the bill may be aided to some extent by common knowledge. The court below will hear and determine the cause on the evidence to be adduced going to show the nature and situation of the properties involved, their contiguity, and every circumstance of environment. Gillette v. Tyson, ante, p. 511,
Our conclusion is that the demurrer to appellant's bill, as for any objection taken by it, should have been overruled.
Reversed and remanded.
All the Justices concur. *659
