10 Ga. 336 | Ga. | 1851
By the Court.
delivering the opinion.
This was an application to Judge Stark, at Chambers, to dissolve an injunction.
The bill further alleges, that the defendant is keeping a jack in said stable, or on the stable lot, and that he permits him to be tried and let to mares on the premises, within view of complainant’s guests, and of complainant himself and his family, from their apartments in the hotel. It further states, that with a view to increase the quantity of manure to be produced from the stable, the defendant is in the habit of littering the stalls with leaves, and complains that if the defendant be allowed to complete the buildings and appropriate them to the purposes contemplated, that the injury to the complainant and his family, as well as his property, will be irreparable; that it will result in the loss of health and comfort and patronage, and in a ruinous depreciation of the value of complainant’s property, in consequence of the unhealthy effluvia that will arise from the stable and grounds, the collection of swarms of flies, and the interminable stamping of horses therein, and from the indecent noise and exposure of the jack; and that complainant requested the defendant to desist from erecting said stable and using it for the purposes stated, which he refused to do.
The answer admits the purchase and occupancy of the tavern by the complainant, the object for which it was bought, and the previous use to which it had been applied, and the relative
Judge Stark dissolved the injunction, on the ground^ that the equity of the bill had been entirely sworn off by the defendant’s answer, and that the answer had not been overcome by the depositions taken for that purpose; and counsel for complainant excepted.
With the exception of the plank floor, all the material facts, charged in the bill, and upon which the injunction was granted, are admitted by the answer. It is true, that the evils which the complainant says he fears, the defendant insists will not result. At any rate, he maintains that the livery stable can be kept in such a way as to prevent these consequences.
If upon the hearing, the Jury should be of the opinion, that this stable with its inmates and attendants, is not a nuisance of itself, but that it may be kept in such a manner as to make it unobjectionable, they will no doubt require by their verdict a decree that the defendant shall enter into bond, with sufficient security, that it shall be kept in this manner, or in some other mode provide adequate protection to the complainant. But this cause may not be tried for several years, and if the injunction is dissolved, what security has Mr. Coker in the meantime ?
In Catlin vs. Volentine, (9 Paige, 575,) the defendant by his
So, in the case of The Burnt Island Whale Fishing Company vs. Trotter, (5 Wils. & Sh. Parl. Rep. 649,) which came before the House of Lords upon an appeal from Scotland, that Court continued the injunction, although the defendants, as in this case, denied that in the particular manner which they intend to carry on their business, it would be a nuisance to the neighboring inhabitants.. Ibid. And in the more recent case of Swinton and others vs. Pedie,( 15 Shaw & Denl. Sess. Ca. 775,) the Lords of Session in Scotland refused to discharge the ad interim injunction, so far as to permit the experiment to be made, whether a slaughter house could be erected and conducted in such a manner as not to be a nuisance to the northern suburbs of Edinburg, in the manner suggested by the defendant, and the decision of the Court in that case was substantially sustained upon appeal to the House of Lords, in 1839. (Maclean & Rob. Parl. Rep. 1018, S. C.) Ibid.
The order of the Circuit Judge dissolving the injunction must be reversed.