123 Ala. 292 | Ala. | 1898
Bill filed by the appellant, Hundley, to enjoin a private nuisance.
A public nuisance, according to the authorities, affects the community at large, or some considerable portion of it, such as the inhabitants of a toAAUi, and the person therein offending is liable to a criminal prosecution. A private nuisance affects only one person or a determinate number of persons, and is the ground for civil proceeding only. — 16 Am. & Eng. Encyc. LaAv, 926; 1 Wood on Nuisances, §§ 14, 15. .
Nuisances per se have been defined to be such things as are nuisances at all times and under all circumstances, irrespective of location or surroundings, as tilings prejudicial to public: morals, as disorderly houses; or dangerous to life, as poAvder magazines, or nitro-glycerine works; or injurious to public rights, as obstructions to highways and navigable streams. — 16
Mr. Wood lays down tlie rule as to private nuisances; v hicli seems to be consonant with reason and authority, to he, that a man may do an act on his own land which is not unlawful or wrong, — not using it in such manner as to injure another, for he may not so use his property as to injure another. “When he sends on to the lairds of his neighbor noxious smells, smoke, etc., then he is not doing an act on his own property only, but lie is doing an act on his neighbor’s property also; because every man has a right, by the common law', to the pure air and to have no noxious smells sent on his lands, unless, by a period of time a man has, by what is called prescriptive right, obtained the power of throwing a burden on his neighbor’s property.” — 1 Wood oil Nuisances, § 556.
The same author again, in section 562 of his work, says: “In the case of noisome smells, as with nuisances from smoke or noxious vapors, the stenches must he of such a character as to be offensive to the senses, or as to produce actual physical discomfort, such as materially interfere with the comfortable enjoyment of property, within their sphere. -It is not necessary that the smells should be hurtful or unwholesome,-it is sufficient if they are offensive, or produce such consequences, inconvenience or discomfort, as to impair the comfortable enjoyment of property, by persons of ordinary sensibilities,” — such as people generally, in the absence of proof to the contrary, will be presumed to have. “A smell that is simply disagreeable to ordinary persons, is such physical annoyance as makes the use of property producing it a nuisance, whether it he hurtful in its effects or not.” — § 563; 16 Am. & Eng. Encyc. Law, 948; Campbell v. Seaman, 63 N. Y. 568, s. c. 20 Am. Rep. 567.
Keferring to our own decisions, in line with these authorities, it has been said: “Anything constructed on a person's premises which, of itself, or byits intended use, directly jujures a neighbor in the proper use and enjoyment of his property, is a nuisance.”—Grady v. Wolsner, 46 Ala. 381.
The doctrine has been invoked by appellee in this case, that an injunction should not be granted until the thing complained of has been declared a nuisance by the verdict of a jury in .an action at law, the exception being as stated, when the proof is clear, and convincing and the apprehended injury is vast and overwhelming. But we apprehend the rule has by recent decisions been extended no further than, — as was declared in English v. Progress E. L. & M. Co., supra,— that “a case must be proved which establishes the necessity of a preventive remedy, — a case Avithin that class tof cases of irreparable and continuous injury which can be adequately redressed only by injunction; and in all cases, where the right is doubtful, and the exercise of the power Avould interfere with industries of public utility, it becomes the duty of the court to abstain from interfering. In such a case the proof should be clear and convincing, and the power should be cautiously and sparing exercised.”— Kingsbury v. Flowers, 65 Ala. 479.
In the well considered case of Campbell v. Seaman, supra, it was said that an injunction was formerly and prior to Lord Eldon’s time, “rarely issued in the case of a nuisance until plaintiff’s right had been established
In Nininger v. Norwood, 72 Ala. 277, the same doctrine is announced. It was there said: “The jurisdiction of the court to enjoin the erection, or the continuance of private nuisances, compelling their abatement, at the instance of the party aggrieved, is Avell established. * * *. There is, in the contemplation of the court, a very just distinction between injuries in their nature temporary and fugitive, and injuries permanent,, continuous, constantly recurring. In reference to temporary injuries, the intervention of the court may depend upon the adequacy of legal remedies. But, Avlien the injury is permanent, continuous, constantly recurring, there may be a remedy at law, but its inadequacy is obAÚous. The court of law cannot restore the party complaining to the condition in which he was before the Avrong was done, and in which he has the legal right to remain.” It was added, referring to the facts of that case, “Nor, if the right of complainant is clear, — if as a matter of Iuaa', the lands of the defendants are burdened Avith the servitude claimed, — is it essential that, as a condition precedent to the interference of the court, the right should have been established by a verdict and judgment at law. Substantial, actual injury has resulted, and there can be no necessity for sending the party to a court of law, for the determination of a mere legal question, compelling submission to the wrong during the pendency of the. action.”
We'h ave stated the foregoing principles that Ave may apply the facts of the case in hand to them.
The bill sIioavs, that complainant is the oAvner of a lot in Huntsville Avliich fronts on Franklin street, im
It is further alleged that since the erection by complainant of the building on Ms said lot, the respondents have erected on the rear of their said building, and-opposite and near the windows of the said law offices and under the windows of said photograph gallery in complainant’s building, a tobacco dry-liouse; that said tobacco dry-house erected by respondents is used by them at frequent intervals, for the purpose of drying tobacco, and when so used, Hiere is emitted from it noxious and offensive odors which permeate the law offices and photograph gallery of complainant’s building, causing great annoyance and inconvenience to the occupants of said building, rendering them physically uncomfortable; that these odors are detrimental to the health.of complainant and his tenants, and seriously affect the comfortable enjoyment of said premises; that said dry bouse is localed in a place narrowly confined by surrounding buildings; is considerably lower than the second story of complainant’s building, with a smoke stack much lower than complainant’s said second story,
The answer, without repeating its averments, it may be stated, denies the material allegations of the bill.
The chancellor on final hearing and proofs dissolved the injunction theretofore granted, and dismissed the bill.
The complainant examined many witnesses to sustain, and the defendants many to disprove the allegations of the bill.
The following facts may be stated as either uncontroverted. or as satisfactorily established. The dry-house is a structure about 10x12 feet in width and length by 8 feet high. It is built on the inside of tongued and grooved planks, sheeted on the outside with second-hand sheet iron, or of iron sheets that had been elsewhere used for the same purpose. It has a single opening, a door facing north towards defendants’ building and about 1-1 feet therefrom, with a stove in the center with a pipe extending about 7 feet above the roof. It is within a few feet of the rear of complainant’s and Mr. Betts’ back offices; is located in a place confined by surround
The process of drying, as detailed by one of the defendants, was to dampen the tobacco with a solution of water, syrup ancl salt in given proportions, to place it on shelves in the dry-house, when thus dampened, and tire fire is started in the stove within and is kept burning until the tobacco is dried out. When thus heated up, a strong odor is emitted from the tobacco differently described by some of the witnesses. Robert Harrison, one of the defendants, described it as the odor of boiled coffee. Mr. O’Reilley, a witness for defendants, described it as having sometimes the odor of coffee and then of sugar burning and then of tobacco, but stated it was neither offensive nor sickening to him.’ All, or nearly all the witnesses agree that an odor was emitted, but those for defendants generally agreed, that it Avas not of such a character as to be specially offensive to them. It may be stated, however, as true, that nearly or quite all the AAdtnesses for defendants occupied local positions different from those of the complainant and that complainant’s premises occupied a position relative to the dry-house, Avhere the odors from it, if offensive, Avere more likely to prevail and to be observed. The fact, therefore) that these alleged emanations from the dry-house were not offensive to defendants’ witnesses in their several habitations, while admissible and relevant as tending to show the real character and extent of the alleged noxious odors complained of, do not disprove the real character and extent of such odors as obseiwed and felt and testified about, by AAdtnesses more exposed to and brought more directly under their influence on complainant’s premises. Let it be observed, that Ave have no reason to believe that any Avitness in the case spoke otherwise than truthfully as he believed the facts
Tancred Betts for complainant testified, he was a lawyer and occupied an office in the Hundley building, and just in the rear, and within 8 or 10 feet of his window, is situated the dry-house of defendants. He says of the building itself, which statement is satisfactorily corroborated by others, that it has an outer covering of sheet iron, and judging from the wooden portion of it that is visible under the eaves from the outside, it is ceiled with floor plank; that it presents the appearance of being erected out of second-hand material, with a number of holes in the iron sheeting, which is evidently of old material, that its joints are not soldered, the building appearing to be loosely constructed, or so open at any rate, that when in operation, he could at times notice the atmosphere surrounding it apparently simmering from heated emanations therefrom.
As to the odor he testified: “The odor is just such as would come from tobacc.o to which heat had been applied and which had been subjected to such a process as ■described by Mr. Robert Harrison in his testimony. It is plainly tobacco odor, — a strong tobacco odor, — with a sweetish sort of accompaniment. And it is not only very disagreeable and offensive, but is sickening and pungent and is frequently so heavy in my office, especially in my back office, when this drying house is in operation, that it affects my throat and eyes and nose both frequently and harmfully. It has the effect of making me nervous frequently, and I am satisfied at times it gave me nervous headache. It was simply an abominable odor. It was not merely an odor or smell, but the atmosphere of my room was frequently so laden with it, charged with it, and thoroughly polluted by it, that no human being could breathe that air constantly or largely without serious detriment to his health, as I verily believe from the effect it had upon me,, and the character of the odor. I was frequently obliged to close the door between my of
The testimony of appellant himself fully corroborated that of Mr. Betts as to the character and effect of these odors, and was quite as positive as to their continuous existence and noxious character. Collins, his wife and son, who occupied the photograph gallery testified, fully corroborating Betts and Hundley. Mr. Collins stated, that he had given complainant notice that he would be compelled to leave his premises if the odor continued. He characterized it as a very offensive, pungent, strong-tobacco odor, which had a very sickening effect, such as would be caused from any vile odor. Mrs. Collins stated, that it was so nauseating, ánd at times so heavy, tliar, you could taste as well as smell it.
P. L. Brohillette, a physician, described the odor as a disagreeable, sickening, nauseating odor, very deleterious to the physical comfort and health of one whose business compelled him to occupy offices in the Hundley building. And so, in this regard, there was no material difference in the evidence of the others of the eleven witnesses for complainant.
The evidence offered by defendant as to the extent and effect of these odors on the occupants of complainant’s building, as has appeared, was more of a negative than of a positive character. Not one of them, as we call to mind, testified with any fullness or certainty as to the conditions prevailing in the Hundley building, as to the alleged odors, but rather concerning them in other buildings and localities, not situated in respect to the .dry-house as complainant’s building was. '
The evidence further shows, that this structure may, at a small cost be removed to the third story of defend
After a full and careful review of all the evidence, Ave are borne irresistibly to the conclusion, that this drying-house of the defendants as maintained by them, is a most flagrant violation of complainant’s rights, and ought to be abated as an unnecessary and harmful nuisance. If defendants had no place on their lot where they could locate and maintain this structure, Avithout the prejudice as shown to the rights of complainant, this fact AVould furnish no reason why they should inflict complainant and his tenants Avith it; but, fortunately, as most manifestly appears, they may remove and place it in their own building at a trifling expense, in relief of complainant.
The decree of the court belOAv Avill be reversed, and one here entered, restoring and perpetuating the injunction, according to the prayer of the bill, against the further operating of said tobacco dry-house by defendants.
BeA'ersed and rendered.