144 Ind. 121 | Ind. | 1896
The lower court denied the appellant’s petition for an injunction, and that ruling is here presented as error arising upon the evidence. By the petition it was alleged that the appellant owned a lot in the village of Fontanet, on the line of appellee’s railway and adjacent to its right-of-way, upon which lot appellant maintained a building for the combined purposes of a business house, a dwelling and a meeting place for social and benevolent societies; that the appellee was proceeding in the erection of a structure, opposite and very near to the appellant’s building, to be used as a coal chute for coal
There is no evidence that the structure will materially obstruct or impair the enjoyment of the appellant’s property with respect to any of the easements in light, air or access. It is wholly within the appellee’s right-of-way, does not reach the highway upon which the appellant’s lot fronts, and the building proper is not directly opposite to appellant’s building, though a trestle, upon which cars are to be stored for unloading, does extend to a point near to
The courts have no privilege to deny one the right to expend his money unwisely or to erect such buildings upon his lands as do not materially interfere with the reasonable enjoyment by others of their property. That appellant might have sought, in this suit, to restrain unlawful uses of the structure is not questioned, but that she did not do so is free from the slightest doubt. In Wood. Nuisances, section 997, it is said: “But if the bill seeks to enjoin the erection of a building upon the ground that its use will be a nuisance, it must be alleged in the bill and proved upon the trial that the building itself will be a nuisance, and that it can be devoted to no use except such as will be productive of such results.” This proposition is supported by the case of Cleveland v. Citizens, etc., Co., 20 N. J. Eq. 201. The case in hand does not meet the requirements of this proposition, though, as we have said, this proposition is as liberal as the appellant could require. In addition to the authority cited, see Keiser v. Lovett, 85 Ind. 240; Bowen v. Mauzy, 117 Ind. 258; Robinson v. City of Valparaiso, 136 Ind. 616. Each of these cases recognizes the rule that equity will not restrain that which is not a nuisance upon the claim that it may be so used as to constitute a nuisance. In this view of the case it is unnecessary to pass upon the sufficiency of the evidence to estab
There being no available error in the record, the judgment of the circuit court is affirmed.