137 Tenn. 466 | Tenn. | 1916
delivered the opinion of the Oonrt.
The bill of complaint was filed by Fox to have a saloon, operated by defendants next door to his place of business as a family grocer in the city of Nashville, declared a nuisance and abated as such, and for the recovery of damages dne to loss of business on his part.
It appears that the saloon was operated by defendants after the passage of a statute that made it a misdemeanor to sell intoxicating liquors; but the effort of complainant is to show that the saloon was run in such an objectionable way as that it was a nuisance specially injurious to him.
The proof clearly shows that the place wa's, as operated by defendants, in every sense of the word a “negro dive.” Large crowds of negroes of low order were permitted to assemble in and about the saloon. Frequently they would block the sidewalk, obstructing pedestrian travel to the family grocery and meat store of complainant. The negroes were often drunk, boisterous, and quarrelsome. Not infrequently they would engage in.,fights on the sidewalk; and at times there occurred unmentionable indecencies and exposures of their persons. Inside the place negroes were permitted to assemble in mass and engage in loud and foul
We think it clear that the saloon as conducted by defendants was a nuisance, abatable by a court of equity as such.
The fact that the saloon was operated in violation of a criminal statute cannot be availed of by the defendants, since the general rule, as asserted by the great majority of the cases, is that a court of equity will protect property rights against a nuisance, even though the act restrained may be criminal in nature, and be one subject to be suppressed by the State, if the complainant is able to show that he suffers in consequence some substantial and special damage different in kind from that suffered by the public at large. Weakley v. Page, 102 Tenn., 178, 53 S. W., 551, 46 L. R. A., 552; Detroit Realty Co. v. Oppenheim, 156 Mich.,
It is asserted to be error that on final hearing an injunction was granted, since the defendants had on an earlier date, pending the suit, voluntarily discontinued, and thereby abated, the nuisance. Notwithstanding such a voluntary discontinuance, the court may declare the right to an injunction in order to establish the jurisdictional right of complainant to maintain the suit in the court of equity. The practical questions thereafter are those involved in the adjudication of accrued costs and the award of damages. The true rule in that regard is thus laid down in 5 Pom. Eq. Juris, section 586:
“If, after suit is brought and the jurisdiction of a court in equity lias attached, the defendant ceases to commit the nuisance, none the less the equity court will give the plaintiff damages and not turn him out of court and compel him to bring another action at law; and it is sometimes held that the injunction also will issue even in this case.”
The majority of the decisions hold that an award of injunctive process in such event is not proper. It is, we think, sufficient to decree that the right to it was established in 'order that subsidiary rights may be enforced.
The principal proposition advanced by the defendants is, that a court of equity will not enjoin a nuisance at the instance of one who is merely the owner of a leasehold in realty,' and there seems to be a slight con-
It seems clear that the owner of the freehold is not entitled to recover for injuries to the possession and enjoyment of the premises while they are in the possession of a tenant, where the nuisance is not of a permanent character. Miller v. Edson, etc., Co., 184 N. Y., 17, 76 N. E., 734, 3 L. R. A. (N. S.), 1060, 6 Ann. Cas., 146. The wrongful act may affect two different estates or interests in the same property; and the owner of each should have his right' of action. The tenant’s relief is for injury done him in that the enjoyment or usable value of the premises, during his holding, is diminished. Tiffany, Landlord and Tenant, 2124; 29 Cyc., 1258.
The fact that the tenant renews his lease of the property after the creation of the nuisance does not prevent Ms being granted such relief. Central R. Co. v. English, 73 Ga., 366; Bly v. Edison, etc., Co., 172 N. Y., 1, 64 N. E., 745, 58 L. R. A., 500. If the contrary were held, the moral victory would he that of the wrongdoer over the one he had injured — a result that a court of equity will not contemplate.
It is contended that, the nuisance being one temporary and abatable in character, the wrong is therefore
This rule is applicable in cakes of nonpermanent nuisances in actions at law; but the rule is otherwise in equity where the principal relief sought is.injunctive process. Equity moves to avoid a multiplicity of suits and favors the disposition of an entire controversy in a pending suit so far as is practicable; and in such a case there will be an award of damages, not only of those that accrued prior to the commencement of the suit, but of such ‘as accrue up to the time of trial. 22 Cyc., 967; 29 Cyc., 1273; Karns v. Allen, 135 Wis., 48, 115 N. W., 357, 15 Ann. Cas., 543.
This brings us to a consideration of the defendants’ assignments of error that attack the amount of the damages allowed the complainant.
It is apparent that there was incorporated in the sum decreed an allowance'for loss of profits. In fact, complainant’s solicitors attempt to justify and sustain the recovery on that basis. We think that the allowance for loss of profits in business consequent upon the maintenance of the nuisance was error.
The true measure of damages was the amount of loss suffered by complainant because of the lessening or depreciation of the usable value of the premises under demise. Gossett v. Railroad, 115 Tenn., 376, 89 S. W., 737, 1 L. R. A. (N. S.), 97, 112 Am. St. Rep., 846, and cases cited.
