128 Mo. App. 237 | Mo. Ct. App. | 1908
This is a proceeding in equity to restrain the granting of a permit to build a livery stable. The proceeding was begun against the superintendent of buildings for Kansas City. Afterwards the defendant Veatch, Avho applied to the superintendent for permission to build the stable, came into court, AAras made a party defendant and filed her answer. The finding and decree of the trial court Avere for the plaintiffs, and defendant, the superintendent, did not appeal, but defendant Veatch brought the case here.
It appears that there is an ordinance for Kansas
While a structure existing within certain limits when the ordinance prescribing the limits is passed, such as frame buildings within fire limits and livery stables within prescribed limits, may be repaired after the ordinance is passed, yet it must strike any one that substantially a new building cannot be erected under the pretense of repair. An ordinance of the nature we are considering cannot be nullified by subterfuge or evasion any more than any other law. The structure now in existence is comparatively of small consequence compared to that which is proposed. It now is back from the street and it is proposed to dig new foundations and basements upon which will be constructed, according to detailed plans and specifications of an architect, a building of large proportions and one which will house more than double the number of animals and store more than double the number of vehicles. We have no hesitation in declaring thepurpose not to be repair but to be a new structure within the meaning of the ordinance. As justifying this conclusion we will state that while the present structure is thirty-four feet wide and ninety feet long, the proposed structure is to* be made, under the guise of re
The chief question argued is whether an injunction can be had as a remedy for the evil of Avhich complaint is made. Livery stables are said not to be nuisances per se. St. Louis v. Russell, 116 Mo. 248. And defendant contends that only nuisances per se can be prevented by injunctive process, but they are, as is shown by that case, such character of undesirable and hurtful institutions as may be kept at such distance from residences as to greatly lessen, if not destroy, their offensiveness. Defendant in concession to such well recognized law, says that may be true, but that such law cannot be enforced by injunction and cites authority to the effect that equity cannot be turned into a criminal department and the chancellor made to serve in the duties of the judge of the criminal court. That is a general statement of sound law. In Rice v. Jefferson, 50 Mo. App. 464, in an opinion by Gill, J., and on rehearing, by Smith, P. J., that principle of law was stated in positive terms.That was a case where it was sought to restrain the erection of a frame building Avithin the fire limits as established by ordinance. The party complained of had been arrested and tried and found not guilty. The case seems to have been an attempt simply to enforce a city ordinance by the civil process of injunction.
But that and other like cases did not involve a private rig'ht for the enforcement of which there was no adequate remedy at Irav. In law one citizen is no more interested in seeing criminal statutes enforced than another. Stated differently, all citizens are alike interested in the enforcement of law. But where an unlawful act is of special and particular irreparable hurt to an individual and he has no other adequate remedy, he may have injunction to prevent it. [Bank v. Sarlls, 129 Ind. 201.] In this case the act of erecting the proposed stable
Speaking in general terms, it is said that nuisances ■per so may be enjoined in civil process. But if the harmful act is special to the complainant and works irreparable injury to him, the fact of its not being what is known as a nuisance per se ought not to cut him off from relief. There is no reason in such attempted distinction. If the injury is “special in character and not merely greater in degree than that of the general public” injunction may be had. [Baker v. McDaniel, 178 Mo. 447; Closkey v. Kreeling, 76 Cal. 511.] Wren the nuisance is made out by proof there can be no reason for not restraining it. [2 Wood on Nuisances, sec. 594.] It may be stated, in short, that though the matter complained of is not a nuisance per se but is proved to be a nuisance in fact, as herein explained, it may be prevented by injunction, on a petition which clearly and specifically alleges facts Avhich will clearly show to the court that the matter complained of will be a nuisance, - specif ying Avhy it avíII be.
Defendant insists that the petition is insufficient and cites us to the cases of Whitfield v. Carrollton, 50 Mo. App. 98; McDonough v. Robbens, 60 Mo. App. 156, and Holke v. Herman, 87 Mo. App. 125. In the first and second of these cases there was a demurrer to the petition and it was held to be well taken for the reason that the petition Avas too general in its allegations. In the last case, there was no demurrer, and the objection, as
In our opinion the decree of the trial court was manifestly right and it is affirmed.