114 Neb. 573 | Neb. | 1926
Plaintiffs brought this action, praying that defendants be enjoined from operating and maintaining an asphalt
The issues presented are: (1) Is the asphalt plant, operated in the location and under the conditions disclosed by the evidence, a nuisance? (2) If a nuisance, are the plaintiffs entitled to a decree permanently enjoining the operation of the plant on its present location, or entitled only to a decree enjoining the operation of the plant in such manner as to constitute a nuisance?
Defendants contend: -(1) that the evidence does not warrant the finding that the plant, as operated, is a nuisance; (2) that the defendant Hugh Murphy Company has no interest in the asphalt plant and is merely the owner of the real estate on which the plant is situated; that it leases this real estate to its codefendant Hugh Murphy Construction Company, and that there is no ground for any injunctive relief as to the Hugh Murphy Company. It is further contended that in no event are the plaintiffs entitled to a permanent injunction against the operation of the plant, and that the .most to which they are entitled is an injunction preventing the operation of the plant in such a manner as to constitute a nuisance.
The asphalt plant in question is located on a tract of ground owned by the Hugh Murphy Company and by it leased to the Hugh Murphy Construction Company, which owns and operates the plant. The real estate is a tract of land about 750 feet long from north to south, lying east of and adjacent to Sherman avenue, or North Sixteenth street, in the city of Omaha, Nebraska. It -is bounded on the north by Laird street and on the south by Pratt street. As designated by the zoning ordinance of the city of Omaha,
The evidence is sufficient to convince us that the asphalt plant, as operated, constitutes a nuisance, and that plaintiffs are, in equity, entitled to have the nuisance abated and to enjoin its continuance. It does not necessarily follow, however, that they are entitled to have the operation of the plant enjoined. A court of equity will not go beyond the
In Francisco v. Furry, 82 Neb. 754, it is held: “A decree enjoining the use of a feed yard and limiting the use of the owner to the yarding of cattle and hogs therein temporarily and in limited numbers, where the evidence does not make it apparent that it cannot be used as á feed yard without becoming a nuisance, is erroneous.” In that case, as in this, the evidence disclosed that the feed yard, as operated, constituted a nuisance, but the evidence did not show that it could not be so operated as not to be a nuisance. The decree of the court was against the continuance of the nuisance, but not against the use of the feed yard, if it could be so used as not to constitute a nuisance.
In Collins v. Wayne Iron Works, 227 Pa. St. 326, 19 Ann. Cas. 991, the rule is stated in this language: “Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements-of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to.” A like rule is announced in Faucher v. Grass, 60 Ia. 505, and in Lorenzi v. Star Market Co., 19 Idaho 674.
Under the rule as herein set forth, the injunction granted went farther than the necessities of the case required. It should go no farther than to enjoin the operation of the plant, as it was operated at the time of the trial, or in such manner as to permit the escape of smoke, dust, gases, vapors and odors into or over the premises of the plaintiffs, to such an extent as to constitute a nuisance.
It does not appear from the evidence that the defendant Hugh Murphy Company owns, or participates in the operation of, the asphalt plant. It appears that this corporation is the owner of .the real estate, which is leased to its codefendant Hugh Murphy Construction Company, and that the latter company only is interested in the ownership and operation of the plant. Mere ownership of real property imposes no responsibility for a nuisance on it, unless the ■owner is instrumental in causing the nuisance. A tenant in possession is liable for a nuisance by him created on the premises of his landlord, but the landlord is not liable for such a nuisance created by his tenant, unless the landlord authorized or contributed to the causing or maintaining of the nuisance. 29 Cyc. 1203, 1204.
It necessarily follows that the injunction should not run against the Hugh Murphy Company, and that the judgment as to this defendant should be reversed and the action dismissed. As to the defendant Hugh Murphy Construction Company, the decree of the district court is modified so as to enjoin this defendant from operating its asphalt plant in the manner in which it is now operated, or in such manner as to cause or permit the escape of smoke, dust, gases, vapors and odors, to such an extent as to injuriously affect the plaintiffs in the enjoyment of their respective homes, or in such manner as to constitute a nuisance. As thus modified, the judgment of the district court is affirmed as
Reversed in part and in part modified and affirmed.
Note — See (3) 50 L. R. A. (n. s.) 288; 16 R. C. L. 1077 et seq. 3 R. C. L. Supp. 624; 5 R. C. L. Supp. 923.