Garrett v. Smead

121 Va. 390 | Va. Ct. App. | 1917

Whittle, P.,

delivered the opinion of the court.

The appellee, L. M. Smead, who is the owner and occupant of a dwelling house in the town of Salem, obtained a decree injoining the appellant, J. P. Garrett, and the Salem Steam Laundry, Incorporated, from maintaining an alleged nuisance in so using their steam laundry, which is located within one hundred feet of appellee’s dwelling, as to cause smoke, cinders, soot, ashes, noxious gases and odors to be emitted therefrom and cast over and upon the premises of the plaintiff and into his dwelling and kitchen.

iGarrett is the owner and lessor of the building, and his lessee and co-defendant, the Salem Steam Laundry, Incorporated, owned and installed the equipment and conducted the laundry business.

From the foregoing decree Garrett appealed.

We are met at the threshold of the case by a motion to dismiss the appeal because there had been an absolute compliance with the decree complained of, and the matter in controversy between the parties was terminated. Consequently, any opinion or decision that this court might deliver or render would be upon a moot, question.

The motion to dismiss was sustained by extrinsic evidence, and the doctrine is well settled that in such circumstances the appeal ought to be dismissed. Franklin v. Peers, 95 Va. 602, 29 S. E. 321; Hamer v. Commonwealth, 107 Va. 636, 59 S. E. 400; Roanoke Ry. Co. v. Young, 108 Va. 783, 62 S. E. 961, 15 Ann. Cas. 946; Thomas, Andrews & Co. v. Town of Norton, 110 Va. 147, 65 S. E. 466; Burks Pl. & Pr. 754.

Appeal Dismissed.