40 W. Va. 711 | W. Va. | 1895
The Huntington & Elenova Land Development Company filed its bill in chancery in the Circuit Court of Wayne county at the December Eules, 1892, against the Phoenix Powder Manufacturing Company, for the purpose of perpetually' enjoining the works of the defendant as a nuisance.
The allegations of the bill are in substance as follows, to wit: That the plaintiff is a corporation for the purpose of laying out towns and selling lots therein, and doing and engaging in all manner of manufacturing and developing business of all kinds; that it owns about two thousand acres of valuable lands lying in the counties of Wayne and Cabell,
Defendant answered, admitting most of plaintiff’s allegations, but denied that its works were a dangerous nuisance or had to any extent materially diminished the value of plaintiff’s lands; that it had been induced to purchase the land and locate its works thereon by the original incorporators and principal stockholders of the plaintiff, immediately prior to its incorporation, for the prospective benefit of the plaintiff and to increase the value of its property and boom it on the market; that the plaintiff had used it for that purpose in its original prospectus and advertisements, and now that its boom had collapsed, it was endeavoring to shoulder the blame on to the defendant; that its plant has cost it at least two hundred and fifty thousand dollars, and it has built up an extensive and profitable business, and now to' destroy it would produce irreparable loss, and be inequitable, especially, to do so at the instance of the plaintiff.
On a final hearing of the case the Circuit Court granted a perpetual injunction, and from its decree the defendant appeals.
There are virtually two questions presented for the consideration and determination of this Court.
Second. Is the plaintiff in a position to invoke the aid of a court of equity for their abatement? The first of these questions has been answered in the affirmative upon about the same facts in the case of Wilson v. Same (decided at this term of the Court) 40 W. Va. 413 (21 S. E. Rep. 1035.) The first clause of the first point of the syllabus is as follows, to wit: “A mill, manufacturing powder and other explosives, and storing the same on the premises situate on the bank of the Ohio river and near two railroads and a public road is a public nuisance.” Judge Brannon in his able opinion elaborately discusses the question, and arrives at a conclusion which is sustained by reason and authority and was fully concurred in by the Court, and it becomes unnecessary to repeat what has been so exhaustively treated in that case here. That the defendant’s immense works were a dangerous and threatening nuisance is established beyond controversy or doubt.
The second proposition is not so easily disposed of, as it presents a question of equitable interference of the gravest character and highest importance. It is plain from the evidence that the original promoters, landowners, and now the principal stockholders and officers of the plaintiff, for the benefit of the plaintiff in enhancing its lands and rendering them salable, induced the defendant to purchase the land of them and locate its works at the present place. This it did at an immense cost, and the works as they now stand are estimated at over two hundred and fifty thousand dollars in value. Afterwards it is discovered that instead of the defendant’s works being an advantage to, they actully diminish and almost totally destroy the value of a large portion of its lands for the purpose for which purchased, and the plaintiff becomes as anxious to rid itself of the defendant as before its original promoters and many of its stockholders and officers were anxious to haye it come and locate in their midst; that is, including its immediate predecessor, the Continental Powder Manufacturing Company, from whom defendant derives its title.
Plaintiff, failing to make an offer sufficient to justify defendant to remove, instituted this suit in furtherance of the threat to use fair or foul means. The defendant has, indicated its willingness to move, provided it receive a sufficient ■consideration to cover the loss occasioned thereby. There is no evidence to show what this loss would be, other than-it would be greatly in excess of the offer submitted by the ■plaintiff. This offer is not claimed to have been, nor is there any proof to show that it would be, an ample indemnity to the defendant, but counsel insist that it was a mere proffer -of charity. If the evidence had shown that the amount offered was a sufficient indemnity to defendant, and was made and continued for that purpose, plaintiff would have had a much surer standing in a court of equity. But, from the pleadings and evidence in this case, the only question in controversy is as to which of the parties to this suit should bear the expense of tlie removal of defendant’s works to- a more suitable location, and this is still narrowed down to the dif■ference between the proffer made and the actual expense of the removal; and because the defendant will not make the re
Defendant was sold the land, and granted the privilege of constructing its works by those under whom plaintiff claims, for plaintiff’s benefit, and did so construct its works, and has not enlarged them beyond the original intention as understood by plaintiff, as is shown by its prospectus. Bankart v. Houghton, 27 Beav. 425. Defendant has suffered serious losses by several explosions through the negligence of its employes or the interference of others. Its damages have not been less than those of plaintiff from these accidents, wfiile its expenses for rebuilding and repairs have been very great, and for these reasons, plaintiff asks the entire destruction of its works, without recompense. Is this equity? Should the plaintiff, a speculative corporation, be permitted to induce various kinds of manufacturers to purchase of its lands,, make great outlays in creating plants, and then because plaintiff ascertains tha L any such manufactory is an injury to the sale of others of its lands, is it to have the privilege of calling upon a court of equity to destroy the property and investment of those who have been induced to purchase of it in good faith, and without any attempt to deceive it as to the-character of the manufactory to be established? Plaintiff says, “I was mistaken.” Equity says: “Make good the loss-the defendant will incur, and you will be relieved of its obnoxious presence; otherwise, you must bear it as a burden of your own assuming. At least, a court of equity will not lend you its assistance under such circumstances. If you would be heard, come with clean hands and a righteous-cause.”
A person who licenses, permits, or acquiesces in the establishment of a costly and expensive nuisance can not invoke-the aid of a court of equity, even though it prove more annoying and injurious than he anticipated, but he will be left to-his remedy at law, if any. If he can not sue at law, neither can he sue in equity. 16 Am. & Eng. Enc. Law 960; 2 Wood. Nuis. §§ 785, 804, 805, 806; Hulme v. Shreve, 4 N. J. Eq. 116.
For the foregoing reasons, the decree complained of is reversed, injunction dissolved, and bill dismissed.