87 Mo. App. 125 | Mo. Ct. App. | 1901
The plaintiffs and the defendant are adjoining proprietors in the village of Holstein in Warren county. The plaintiffs own a tract of land of irregular shape containing five acres or more on which they had resided twenty-eight years, and the defendant a lot about three hundred feet square, bounded on the west and north by plaintiffs’ land. A public road or street runs along the south side of defendant’s lot on which fronts his hotel and saloon building near the southeast corner of the lot. West of the hotel building is another house used for a dance-hall and west of that a brick building designated as a tenement house. North of these structures are two outhouses, one just back of the hotel and the other of the tenement house. Behind the dance-hall is a privy with a vault seven or eight feet deep. A drainpipe leads from this north between eighty and a hundred feet to a cesspool. A short dis: tance behind' the privy is a building used as a woodhouse, hog-pen and for other purposes. North of this stands an ice-house which is east of the cesspool and both are in the part of the inclosure which may be called the barnyard. The bam itself is towards the northeast corner of the tract on a street running north and south. 'An open drain of slight depth extends northwestwardly down the slope of the ground from the woodhouse and hogpen quite a distance. There are three cisterns on the Herman premises: one just west of the main hotel and saloon building, one near the northwest corner of the tenement house and one immediately west of and behind the
This action arose because of the defendant’s beginning to excavate a pond in the northwest corner of his lot, forty feet wide by eighty feet long, or thereabouts, the west bank of which is thrown up against-the division fence, thus forming the pond immediately east of the dining room and kitchen of respondents’ home and perhaps a foot or two north of the veranda. The water would be a distance from the house estimated at thirty-five feet by the defendant and twelve to sixteen other witnesses. Herman’s ground falls off to the north so that about two-thirds of its surface would drain into or towards the proposed pond. It appears that horses, stock, hogs and poultry often run over the defendant’s barnyard; that the cesspool receives the overflow from the privy and that there would be a foul drainage into the pond. The evidence .shows
An objection was interposed at the outset of the trial to the admission of any evidence on two grounds: that the petition stated no cause of action and that there was no denial of the allegations of the answer showing the plaintiffs were not entitled to relief. The court overruled the objection; an ex-
The objection to the stifficiency of the petition is of more serious import. After charging the ownership of the adjoining premises by plaintiffs and defendant, the progress of the work on the pond and its intended proximity to plaintiffs’ dwelling,
The fault of the petition is this: It consists of predictions that harmful results will follow the construction of the pond instead of facts sufficient to show clearly the apprehended mischiefs will necessarily arise. The one subsantial fact in it is the allegation that the water will be only twelve feet from respondent’s residence; and unless we are prepared to hold
But in the case cited, this court committed itself to the doctrine well nigh universally upheld, that injunctions will not be granted to restrain a use of property which it is claimed will create a nuisance unless the use to be restrained is ipso facto a nuisance or the pleader charges facts from which the court can see that it must become one. Particular and positive allegations of facts are especially insisted on by the authorities in such actions, where the mischief is not actual, only apprehended. The uncertainty of future events, the frequency of groundless alarms and the despotism of needlessly preventing a citizen from using his property in the mode he considers most conducive to his interest or pleasure have properly made the courts extremely conservative in granting such relief and
The rule of pleading is well stated in the text of 14 Ency. Pleading and Practice, 1144: “Equity is usually reluctant to grant an injunction against a nuisance not yet in existence but only threatened, and will require that a clear case be made •out before it will grant relief. Hence where an injunction is sought in such case the bill must allege sufficient facts for the court to see clearly that the thing complained of will constitute a nuisance. It is not enough to allege in general terms that probable injury will result; the bill must state facts and not opinions.” Numerous cases arising on various groups of facts can be found that illustrate and support the proposition thus expressed, a few of which may appropriately be noticed.
Thebaut et al. v. Canove et al., 11 Fla. 143, was a case in which an injunction was asked against the erection of a steam mill on the grounds of irreparable injury to complainant’s property and their free use of it by the constant noise of the machinery in the immediate vicinity of their residences, the rendering of the air impure and unwholesome, the annoyance from smoke and danger of fire. The opinion says: “It is not enough that a complainant should .allege in his bill that the
“When the matter complained of is not in itself a nuisance, when it is not in its very nature hurtful to others, when it does not of necessity threaten to impair materially the health and comfort of those who may live near it, and the fact that it is a nuisance has not been established at law, the court abstains from interference unless a case of pressing necessity is shown by the bill and by the proof,” was the language of the court in Booser v. Randolph, 7 Porter, 238.
Adams v. McMichael, 38 Maryland, 123, declared the same rule. “It is not enough for the parties complaining simply to allege that particular consequences will follow the erection of the factory; that may be their opinion or apprehension, but facts must be stated so that the courts can see and determine whether the allegation is well founded.”
In Davis v. Adkins (Ky.), 35 S. W. Rep. 271, a petition against the erection of a sohoolhouse and privy, because the flow of water from them would ruin complainant’s spring, was held properly dismissed there being no averments making it reasonably clear that such a drainage into the spring would' inevitably result.
The Supreme Court of Indiana reversed a decree entered on a demurrer to a complaint to enjoin defendant from converting his dwelling house, twenty-eight feet from the plaintiff’s front door, into a blacksmith shop which alleged that the noise, clatter, smoke, smells, accumulation of filth and vehicles and horses around the shop would be unbearable by plaintiff’s family, injurious to their health and greatly damage him. The only material averments, it was held, were the location of the respective premises of the plaintiff and defendant and the latter’s intention to turn his into a blacksmith shop, and that the additional matter was mere conclusions which the demurrer did not ndmit to be true. “To hold the complaint good would be to hold that any complaint would be good to enjoin any legitimate business by alleging that the complainant owned and resided upon a lot and the adjacent lot owner was about erecting a building on his lot in close proximity to the complainant’s residence to carry on mercantile or other lawful business which would be patronized by the public, and drawing like inferences to those drawn in this complaint, without averring that the person threatened or intended conducting the business in an improper way or that it could not be conducted at such place without injury and danger to the complainant.” Bowen v. Mauzy, 117 Ind. 258. We deem it unnecessary to multiply quotations to support a rule so well established.
The only case taking the opposite view which we have found is Aldrich v. Howard, 7 R. I. 87. There the allegations of the bill are much fuller than here, but the opinion treats the predictions as to the harmful results which would follow, as themselves issuable facts, a view which we consider unsound both on principle and authority.
In the case in hand, if a’ cause of action is not made out
The nature of the evidence, which is of much wider scope and more impressive than the allegations, forbid us to dismiss the petition on this appeal. The testimony before us tends strongly to prove that the pond if completed would be a receptacle for the filthy wash and filthy drainage from the appellant’s premises and that it must be supplied in that way or not at all.
So holding, we would not consider the defendant’s purpose to annoy the plaintiffs as ground for restraining him; but the fact that he thought it would annoy them is a circumstance to be weighed in determining whether it would be a nuisance or not. While we hold that making the pond as located is prima facie a lawful act and that it is incumbent on the respondents to show facts clearly stated in the pleadings and proven by the evidence that it will with reasonable certainty impair their health and comfort if they would have it restrained, we likewise hold that if such is made to appear they are entitled to relief by injunction. The doctrine so often stated, that courts of equity are reluctant to restrain a threatened nuisance involves the converse proposition, that they will do so when it is apparent or extremely probable a nuisance will be created. Beach on Injunctions, see. 1071; Wood on Nuisances, secs. 100 and 796; Ryan v. Copes, 11 Richardson’s Law, 217; 73 Am. Dec. 106; Ross v. Butler, 19 N. J. Eq. 294;
Tbe reasons for preventing a prospective mischief are at least as cogent as those for abating a present one. In the latter' instance the courts act more readily because they are sure of their ground; the evil is visible. Put the call for protection against .an apprehended injury, reasonably certain to befall, is as imperative as that for relief from one now felt. Nor is the complaint required to wait until some harm has been experienced or to show with absolute certainty it will occur. One requirement would make the remedy largely useless and the other impracticable. Miley v. O’Hearn, 18 S. W. Rep. (Ky.) 529. While perhaps proof that it is inevitable or will necessarily ensue may be properly demanded, when nothing more than discomfort is anticipated, when danger to health .or life is threatened, a reasonable certainty is enough. Wood on Nuisances, sec. 100. A party does not have to stand by until his family have sickened or died. In the case at bar, the preponderance of tbe evidence adduced at the trial seems to be that 'the proposed pond could not, the circumstances and surroundings considered, be so constructed, supplied with water and used that it would not generate disease germs, be seriously deleterious to the health of respondents .and impair their physical comfort in the use and enjoyment of the house and grounds which have been their home for many years. If this is true it should not be tolerated. If, however, it may be so filled and kept by proper care as to cause no mischief, the defendant should be permitted to make use of it in that way.
It is not necessary, nor do we think it would be just, to dismiss the petition. We may give the respondents’ leave to amend. Stevenson v. Edwards, 98 Mo. 622. The judgment is therefore reversed and the cause remanded with directions to permit the plaintiffs to re-plead, if so advised, on payment of the costs of the trial and appeal.