41 So. 145 | Ala. | 1906
It is an elementary principle in reference to private rights that every individual is entitled to the undisturbed possession and enjoyment of his own property. The mode of enjoyment is necessarily limited by the rights of others; otherwise, it might be made destructive to their rights altogether. In the case of Hay v. Cohoes, 2 N. Y. 159, 51 Am. Dec. 279, where the declaration charged that by the defendant and its agents and servants, while constructing a canal on their own premises, which they had the right and authority to do, large quantities of gravel, slate, and stone were thrown upon plaintiff’s lands, the court said:
It is true that the bill -avers that the rocks were thrown on complainant’s premises because of the negligent manner of blasting, and the undisputed evidence of respondents is that there was no negligent blasting; ■yet the bill avers that the rocks were constantly thrown j on complainant’s premises, and this fact was proven by his witnesses, and was contradicted only by circumstance's and inferences. The complainant, consequently, made out a case for equitable relief, although he fails to prove that.'the blasting was negligently done, which was merely cumulative, and the nonexistence of which cOUld not' defeat the bill. — Noble’s Adm’r. v. Moses, 81 Ala, 530, 1 South. 217, 60 Am. Rep. 175. While a complaining party cannot use a court of equity for the purpose of avoiding an action at law, which would afford
According to tbe averments.of the bill and tbe proof, tbe wrongs are of a continuous character, constantly interfering with tbe enjoyment by tbe complainanbancí bis family of bis premises, and wbicb do not'fall short of a nuisance, and for which tbe complainant can not obtain adequate redress in a court of law. The fact that none of tbe occupants have thus far been hurt- may Aveaken to some extent the complainant’s proof, but it does not deprive tbe bill'of equity.' Tbe law does not consider that a man has the free enjoyment of his home, when large rocks are frequently burled upon bis housetop) in bis yard, and upon Ms highway, simply because be has thus far escaped physical hurt. Nor does it help matters that tbe respondents give a warning signal before every blast, as the law does not require' that it is incumbent upon a man to háve to seek shelter f or himself ánd family from a wrongful bombardment of his premises, although the aggressive party gives timely notice before committing the dangerous act; It must be also observed that if the defendants’ theory is correct as to the manner of operating its quarry, and that the rock would
The decree of the chancellor is affirmed.