Canton Cotton Warehouse Co. v. Potts

69 Miss. 31 | Miss. | 1891

Cooper, J.,

delivered the opinion of the court.

The appellee is the owner of a lot in the town of Canton, situated in a square bounded on the east by the Illinois Central Railway, on the south by Peace street, and on the north by Franklin street. Her lot extends through the square from Peace to Franklin street. Her residence fronts on Peace street, and in it she conducted the business of keeping boarders, who were servants of the adjacent railway, and resorted to her house because of its nearness to their place of business. On that part of the lot fronting on Franklin street she has a cottage, the furnished rooms of which she rented to her boarders and others. The defendant owned the lot east of the lot of the plaintiff', in the same square, and also a lot north of Franklin street and north of the lot lying in the same square with the lot of complainant. The defendant, for the prosecution of its business, has erected certain buildings on its property, and also upon that portion of Franklin street by which its lots are separated, closing up the eastern end of Franklin street, which is the point towards the railroad and the business portion of the town. Complainant’s lot fronting on Franklin street is thus placed in a cut de sac — closed at the end through which those who patronized her furnished rooms were accustomed to approach them.

The purpose of her bill is to compel the defendant to remove the obstructions from Franklin street, and for damages sustained by her. by reason of their existence.

The relief prayed is challenged by demurrer on the following grounds: First, that the obstructions complained of are, if a nuisance at all, a public nuisance, and that complainant has sustained no special injury authorizing her to maintain any action; second, that she cannot maintain a bill for injunction until she shall have recovered in an action at law; third, that she has an ample and complete remedy at law for all injury she has sustained. The court below overruled the demurrer, and from that decree the defendant appeals.

Though the obstruction of the street by the defendant may be a public nuisance, and liable to abatement as such, the complainant has sustained such injury peculiar to herself as to warrant a private suit. Benjamin v. Storr, L. R., 9 Com. Pl. Cas., 400; Soltau v. De Held, 9 Eng. L. & Eq., 104; Corning v. Lowerre, 6 Johns. Ch., 439; Frink v. Lawrence, 20 Conn., 117; Conrad v. Smith, 32 Mich., 429; Pratt v. Lewis, 39 Ib., 7.

The right of the complainant is clear, and its infraction manifest. The injury is of such nature that the remedy by, action at- law is incomplete, and under such circumstances the jurisdiction of equity is undoubted, without regard'to whether there has or has not been a recovery at law. Learned v. Hunt, 63 Miss., 373.

The decree is affirmed.