606 F. Supp. 434 | S.D. Miss. | 1985
MEMORANDUM OPINION AND ORDER
The building commonly known as the King Edward Hotel (King Edward) is a twelve story building that was built approximately 60 years ago in what is now the western section of downtown Jackson, Mississippi. The block in which the King Edward is located is occupied primarily by office buildings. The railroad station, several stores and a hotel are situated across the street. The King Edward had been vacant for approximately thirteen years when the defendants, Dean Morley and Margaret Laurence, acquired it in February 1981. The plaintiff, the City of Jackson (City), brought suit in the Chancery Court of the First Judicial District of Hinds County, Mississippi, alleging that the King Edward was “being maintained in such a manner so as to constitute a public nuisance.” The complaint specifically referred to the building’s inoperable standpipe system, accumulation of combustible waste, loose and falling window screens, and inadequate securing of the building. The defendants removed the action to this court with jurisdiction premised on diversity of citizenship. See 28 U.S.C. § 1332.
Maurice Joy, Fire Marshall of the City of Jackson Fire Department, testified from his records that his department has conducted inspections and found several problems since the King Edward has been vacant. Upon finding the building to be unsecured on February 2, 1982, the fire department discovered that the building had been sold to the defendants. The building was also inspected on June 23, 1983, and the report of that inspection, a copy of which was mailed to the defendants’ attorney, noted that the standpipe was inoperable, that an elevator was missing
On January 10, 1984, Joy and Stegall entered the building through a broken window
The building was again inspected March 20, 1985, a few days before the trial of this case, by Fire Marshall Joy, Captain Stegall and Warnie Kennington, Director of Building and Permit Department for the City of Jackson. Upon entering the building, the inspectors found two scavengers and promptly called the police. The inspection revealed that elevator doors were still open and the standpipe remained inoperable.
In Green v. State, 212 Miss. 846, 56 So.2d 12,15 (1952), the Mississippi Supreme Court stated:
No doubt a nuisance is public if it affects the entire community or neighborhood, or any considerable number of persons. Furthermore, it undoubtedly is true that a nuisance is a public one if it occurs in a public place or where the public frequently congregate, or where numbers of the public are likely to come within the range of its influence; and it seems to be sufficient to constitute acts or conditions of a public nuisance if injury and annoyance are occasioned to such part of the public as come in contact therewith.
Id., quoting State v. Turner, 198 S.C. 487, 18 S.E.2d 372, 375. See also Dow v. Town of D’Lo, 169 Miss. 240, 152 So. 474, 476 (1934) (on suggestion of error).
The City has alleged first that the existence of an inoperable standpipe constitutes a public nuisance.
The City also contends that the King Edward is a nuisance because of the accumulation of combustible waste in the building. The evidence shows that the defendants have removed the combustible waste when its presence was reported to them. While combustible waste increases the risk of fire in a vacant building, the court cannot conclude that it constitutes a public nuisance when the defendants take prompt action to remove it.
The plaintiff finally argues that the building is inadequately secured and attracts vagrants who increase the risk of fire, which threatens the safety of legitimate occupants of the neighborhood. The evidence does not support the plaintiff’s contention that the building is inadequately secured.
Although not mentioned in the complaint, the plaintiff has also raised the issue of whether the substantial accumulation of pigeon waste in the upper floors constitutes a nuisance.
Having determined that only the absence of an operable standpipe system is a public nuisance, the court now considers the remedy available. In Paramount-Richards Theaters, Inc. v. City of Hattiesburg, 210 Miss. 271, 49 So.2d 574 (1950), the City filed suit to enjoin the operation of movie theaters on Sunday. A new city administration had recently given notice that the Sunday laws would be enforced. The theater owners did not comply and the City made 185 arrests during five Sundays. The defendants questioned the court’s jurisdiction to enjoin their actions but the court stated:
Under many circumstances, injunctions will lie to prevent repeated and continuous violations of a penal statute ... The court found from all the facts that the operation of the picture shows in defiance of the law was a nuisance, and that the situation would grow worse unless enjoined. As a matter of fact, the defense to this suit showed that the city was powerless to stop the violations of the law, or secure the peace, or abate the nuisance except by injunction.
Id. 49 So.2d at 579. Such is the situation here. Dean Morley, one of the defendants, testified that he and Margaret Laurence decided not to repair the standpipe pending resolution of this suit.
The plaintiff has also established that the inoperable condition of the standpipe seriously jeopardizes the public safety.
The plaintiff seeks to require the defendants to expend a considerable amount of money to install an operable standpipe system. The injunction is mandatory in nature and such
should never issue unless the right to it is so clearly and certainly shown that*439 there can be no reasonable doubt of its propriety, no probability that the defendant can make any valid objection to it, and no possibility that its justice can be contraverted. Unless its grounds be inexpugnable, both sides must be heard before its issuance, and even then it should be refused unless irreparable and immeasurable would result.
Thomas v. Mississippi Power and Light Company, 170 Miss. 811, 152 So. 269 (1984).
The defendants have raised, as a defense, objections to their being ordered to comply with the law. They argue that vandalism, caused by the failure of the Jackson Police Department to sufficiently patrol the area, prevents maintenance of an operable standpipe system.
It is the opinion of this court that the injunction sought with reference to the standpipe should issue and that the other relief sought should be denied.
It is, therefore, ordered that the parties shall, within ten days of the date of this memorandum opinion and order, submit to the court an agreed schedule for installation of an operable standpipe system in the King Edward. Should the parties be unable to reach such an agreement, each party shall submit separate proposed schedules for review by the court.
A judgment shall be submitted in accordance with the local rules.
. Warnie Kennington explained the significance of the missing elevator door as well as the absence of chase panels. Both are hazards to fire fighters who may fall down the shafts in a fire. Additionally, the shafts provide vertical ventilation that would substantially increase the intensity of a fire.
. The defendants have issued a standing offer for members of the fire department to tour the building. The purpose of the tours is to enable fire department personnel to acquaint themselves with the design of the building.
. The defendants contend that the broken window found on January 10, 1984 was the window broken by the fire department when responding to a false alarm in December 1983.
. This suit was filed January 12, 1984. Defendants argue that they had no notice of the inoperable standpipe until after the suit was filed. However, the report of the June 23, 1983 inspection noted the inoperable system and a copy of that report was mailed to the defendants' attorney.
. The Fire Code of the City of Jackson provides in part:
18.209 Wet Standpipes, Required. ******
b. Buildings shall be equipped with standpipes as follows:
1. buildings two (2) stories or more in height. The fire code is applicable "to new and existing conditions.” Section 1.03, Fire Code of the City of Jackson.
. Defendants object to the use of a wet standpipe system since the building is unheated and the pipes would, therefore, possibly freeze and burst.
. The inspectors also found new debris and combustible waste. The defendants represented at trial that this debris had been removed.
. By memorandum opinion dated November 15, 1984, the court granted the plaintiffs motion for partial summary judgment on the issue of the inoperable standpipe. Prior to the trial, the court informed the parties that it would consider evidence on the question of whether the standpipe constituted a public nuisance and whether issuance of a mandatory injunction in abatement thereof was appropriate.
. The court does not imply that a finding of a public nuisance can always be avoided by merely responding to official requests without any affirmative action.
. The city also contends that the building is not adequately maintained. In August 1984, defendants were notified of the presence of a potentially explosive gas which appeared to be emanating from the King Edward. The defendants discovered that the problem resulted from the failure of a pump in the basement of the building. They repaired the pump and have taken steps to prevent a recurrence. The court finds this to be an isolated incident which was promptly remedied by the defendants and not indicative of a pattern of inadequate maintenance.
. Bell recounted two instances in which he had discovered intruders in the building. He found a man who was apparently drunk and, on another occasion, several architectural students.
. Defendants introduced into evidence a computer printout of crimes reported and/or investigated in the vicinity of the King Edward and an analysis thereof. The evidence was admitted after the court noted that the plaintiff had not raised the issue of the character of the neighborhood in its case in chief. The defendants’ exhibit indicates that the King Edward is located in a relatively high crime area but this is insufficient proof of a nuisance.
. The parties have stipulated that there is a substantial accumulation of pigeon waste in the top floors of the King Edward.
. The evidence does not establish that any present danger would be substantially increased in the event of a fire. Morley testified that
. The defendants have corrected other deficiencies pointed out by the fire department and the complaint.
. The defendants argue that only firemen engaged in the fighting of a fire in the King Edward are in danger and that this group of people does not constitute the public for purposes of a public nuisance. While the court finds that firemen are in particular danger, the court also concludes that the general public would be endangered by a fire in the King Edward which could not be controlled because of the lack of an operable standpipe.
. Captain Stegall testified that during the March 20, 1985 inspection, he found evidence of fires in certain rooms of the building.
. See supra note 1.
. The defendants argue that if a dry system were installed and the valves stolen by vandals, inspectors would not be able to determine if the system is working without testing it. Firefighters would be in much more danger if they could only discover the system was inoperable when tried during a fire. This argument obviously does not justify a refusal to maintain an operable system.
