177 Ky. 814 | Ky. Ct. App. | 1917
Opinion op the Court by
— Affirming.
The city of Richmond brought this suit against A. J. House and Ed. Million, to enjoin them from operating certain stock yards or cattle pens, on the ground that they would prove a public nuisance. Being denied the relief prayed for, the city appeals.
The building where the stock yards are conducted is located on the corner of East Main street and Big T-Till avenue, in the city of Richmond. Prior to its purchase by appellees, it was used as a loose-leaf tobacco ware-
1. It is the well-established rule that an injunction will not be granted against a threatened nuisance, when the thing complained of is not per se a nuisance, but may or may not become so according to circumstances. This rule was applied where it was sought to enjoin the opera
“A private stable near a church does not belong to the class of erections which are unavoidable and in themselves nuisances. That it may become a nuisance is, no doubt, true; but the question whether or not it will prove to be one depends in a great measure upon its proximity to the church, the manner in which it shall be built, the number of horses placed in it, and the degree of care with which it may be kept. . . . Whenever it is legally ascertained that it has become a nuisance, a court of equity will protect by injunction any party injured thereby. But as in the present case it is yet uncertain, and remains to be ascertained from future events, whether or not the erection will become a nuisance, there is no ground for an injunction arresting the further progress of the building, or its appropriation to the use intended.”
In view of the fact that the stock yards will be operated for only three or four days in each month, that no nuisance was shown to exist at the time of the trial, and that the stock yards nearby had not proven to be a nuisance, although not as well equipped for handling stock as the stock yards in question, we are unable to say that the latter is a nuisance per se. On the contrary, it is clear from the evidence that the question whether they will prove to be a nuisance, will depend almost entirely on the manner in which the business is conducted. Since the apprehended injury is therefore doubtful, uncertain and contingent, the chancellor did not err in refusing the injunction on the ground that the stock yards would prove a nuisance.
2. Another ground urged for the injunction is, that appellees failed to get a permit under the following ordinance :
“It shall be unlawful for any. person or corporation to open, carry on, or operate any butcher shop, slaughterhouse, glue factory, brewery, distillery, livery stable, blacksmith shop, stock yards or foundry within the limits of the city without the permission of the board of council granted, at a regular meeting thereof,- upon written*817 application; but any of said business or trades now in operation in the city are exempt from this ordinance.
“(2) Any person violating the provisions of this section shall be fined not less than five dollars nor more than fifteen dollars for each day said business is opened, carried on or operated, without said permission. ’ ’
It will be observed that this ordinance does not prescribe any rules or conditions with which the applicant must comply, or by which the board of council is to be governed in determining whether the permit will be granted or refused. On the contrary, the board of council is vested with an arbitrary discretion, which 'it may exercise in favor of one citizen and against another, although the circumstances may be practically the same. It follows that the ordinance is invalid and the injunction was properly refused, because of its alleged violation. City of Monticello v. Bates, 169 Ky. 258, 183 S. W. 555; City of Richmond v. A. J. House, &c., 177 Ky. 829.
Judgment affirmed.