61 S.E. 267 | N.C. | 1908
The complaint alleged and there was evidence tending to show:
1. That the plaintiffs are residents and citizens of the county and State aforesaid, and reside on Chestnut Street in the city of Greensboro.
2. That the defendant Dr. John Roy Williams is a practicing physician, residing in said city, on said street, and is the owner of a lot fronting 50 feet in width on said Chestnut Street and running back a distance of something over 200 feet in depth from said street.
3. That the defendant John Roy Williams is now erecting on the said lot owned by him a building to be used as a sanatorium for the treatment of tuberculosis and other infectious and contagious diseases, and has also, as these plaintiffs are advised and believe, entered into a contract for the erection of a number of small cabins or pesthouses for the treatment of tuberculosis and other diseases, and he is now engaged in the construction and erection of said buildings on said lot for the treatment of tuberculosis and other diseases aforesaid for his individual gain.
4. That the plaintiff Luther H. Cherry is the owner of a lot adjoining the said lot of the said Williams, of the same size, between which there is no obstruction or protection, and that the said Cherry, who has a wife and children, lives within 100 feet of the said lot on which are being erected the buildings aforesaid; that the plaintiffs N.J. Bakke, J. W. Case, G. A. Hood, J. T. Wade, v. B. Young, and others are also owners of lots on the same street, located within a few feet of the said lot on which the said Williams is erecting the buildings aforesaid.
5. That the said lot of the said Williams is located in a thickly populated section of the city and on the said street, where not only plaintiffs but a large number of other people reside, and that the erection and use of said Buildings for the purpose aforesaid are in (454) violation of the rights of the plaintiffs, and if permitted to be erected and completed and used for the purposes aforesaid will work irreparable and permanent injury and loss to the plaintiffs.
6. That the plaintiffs are advised and believe that the disease or *338 diseases for the treatment of which said buildings are being erected are infectious and contagious and a menace to the public health, and if defendant is permitted to use said buildings for the treatment of said disease or diseases the health of the plaintiffs and the public will be endangered thereby, and that consequent loss of health and life will follow the construction and use of said buildings for the treatment of such disease or diseases as the defendant has determined to treat in said buildings
7. That the plaintiffs are suffering or about to suffer not only irreparable injury in the matter aforesaid, but they are also forced to sustain irreparable and permanent loss by the depreciation of their property located in close proximity to the said lot by reason of the location of said buildings on the said lot of defendant for said purposes, and by reason of the further fact that the defendant is, as plaintiffs are advised and believe, insolvent and utterly unable to respond in damages for the injury and loss which they have already sustained and will continue to sustain.
8. That if the defendant is permitted to complete said buildings and to use them for the purpose of treating tuberculosis and other diseases, the plaintiffs and their neighbors who reside on the same street will be made to suffer loss and permanent injury, unless the court intervenes for their protection and restrains the defendant from the continuance of his work in the erection of said buildings, and that the private injury resulting therefrom is greatly in excess of any benefit to be derived therefrom. Defendant, admitting his purpose to construct and use buildings for the treatment of consumptives, and at the place indicated, offered (455) a large amount of evidence, including affidavits of specialists eminent in their profession and in the treatment of tuberculosis in hospitals and otherwise to the effect that "a sanatorium for the treatment of consumptive patients located in the city of Greensboro, properly maintained and conducted, would not be a menace to the health of the community in which it is situated nor to the public health; that such sanatoriums are conducted in large and populous cities all over the country where the climate is suitable for the patients, and that experience has shown that such sanatoriums are not a menace to the public health, but rather a benefit"; that the proposed locality is not thickly populated, and consumption is not a contagious or an infectious disease, and that defendant is qualified to conduct the proposed sanatorium properly and intelligently.
On considering the evidence offered by plaintiffs and defendant, the restraining order was continued to the hearing, in terms as follows: "This cause coming on to be heard, and being heard upon the complaint *339 and affidavits herein filed, and it appearing to the court from the complaint and affidavits of the plaintiffs in this cause that the defendant is now erecting on the lot described in the complaint buildings to be used for the treatment of tuberculosis and other infectious and contagious diseases, and that said buildings are a menace to the public health and threaten to cause irreparable and permanent injury and loss to the plaintiffs; and, further, that the plaintiffs are entitled to have the defendant John Roy Williams temporarily restained [restrained] from the continuance of his work in the erection of said buildings," it was ordered that the restraining order heretofore issued be continued to the hearing. Defendant excepted and appealed. After stating the facts: The authorities in this State (456) will uphold the position that, when there are facts in evidence which give good reason to believe that the owner of property in the residential portion of a thickly settled vicinity is about to devote it permanently to a use which imports serious menace to the health of the owners and occupants of adjacent property, such user should be restrained until the facts on which the rights of the parties depend can be properly determined at the final hearing. The conditions suggested, if established, come well within the definition of an actionable nuisance, and if there is a well grounded apprehension that neighbors will be unreasonably exposed to serious danger from a disease of the nature of consumption the injunction should be continued to the hearing. The injury threatened in such case would be irreparable.
As said by Justice Walker, in Durham v. Cotton Mills,
Courts are properly very reluctant to interfere with the enjoyment of property by the owner, and there is a line of cases in this State, and they are in accord with established doctrine, to the effect that when the owner of the property is about to engage in an enterprise which may or may not become a nuisance, according to the manner in which it may be conducted, courts will not usually interfere in advance to restrain such an undertaking, and especially when the apprehended injury is "doubtful or contingent or eventual"; hut these decisions will very generally be *340
found to obtain in causes where the apprehended injury was threatened by reason of some industrial enterprise which gave promise of benefit to the community, affecting rather the comfort and convenience than the health of adjoining proprietors and giving indication that (457) adequate redress might in most instances be afforded by an award of damages, as in Simpson v. Justice,
But where the special conditions referred to, and to some extent relied upon in these cases, do not exist, and there are facts in (459) evidence which tend to establish with reasonable certainty that there is a well grounded apprehension of irreparable injury to complainant's health by reason of the threatened and unwarranted use of adjacent property, the decisions in this State are to the effect that such user should be restrained till the hearing. Thus, as far back as Belt v.Blount,
In Eason v. Perkins,
The doctrine announced in these cases in our own Court is supported by well considered decisions in other jurisdictions. Gilford v. Hospital, 1 N.Y. Supp., p. 448; Baltimore v. Impr. Co.,
(461) In the case at bar there is evidence on the part of plaintiff, direct, positive, and specific, that the erection and use of a hospital in that particular locality, in the manner and for the purpose *343 proposed, will be a source of real danger to the lives and health of numbers of people living in that vicinity; and, while the affidavit of defendant himself makes specific response, a large portion of the supporting evidence offered by defendant is very general in its terms and made without reference either to the special locality or to the special manner in which the particular hospital is to be constructed and carried on.
If defendant desires to proceed with the construction of his buildings and risk the results of the trial, the restraining order may be modified to that extent, but any and all use of the buildings for the purposes indicated should be restrained to the hearing, and the judgment of the court below in that respect is affirmed.
Modified and affirmed.
Cited: McManus v. R. R.,