45 Ill. App. 419 | Ill. App. Ct. | 1892
This was a bill to enjoin the use of a privy constructed by appellees as school directors, on school premises, adjacent to the premises owned and occupied by appellant as a residence. The privy, consisting of a vault six feet deep lined with plank and covered with an ordinary wooden structure, is forty-seven feet from appellant’s well, from which he obtains water for drinking and cooking purposes, and seventy-two feet from his dwelling. The grounds claimed for an injunction were, first, that the privy would contaminate the well and render the water unfit for use; and second, that appellant and his family would be annoyed by noxious smells arising from the privy vault. A preliminary injunction was granted by the master in chancery. After the issues were formed the- cause was. referred to the master to take proof and report conclusions of law and facts. Pending the taking of proofs the preliminary injunction was dissolved by the court on affidavits. The master reported adversely to the complainant and the cause was heard on exceptions to the report. The court overruled the exceptions, dismissed the bill without prejudice, and on the suggestion of damages which were filed at the time of the dissolution of the injunction awarded damages against the complainant to the amount of 8125. A privy so constructed as to contaminate water of a well used for domestic purposes or which is allowed to remain in such condition that persons dwelling near it are rendered uncomfortable by the escape of noxious smells and filthy matter, is a nuisance per se. In such a case a court of equity will not wait until it has been determined by a jury in a trial at law, that a nuisance in fact exists, before exercising its restraining power against the use of the concern. The injury resulting ■ from such a nuisance affects health and the physical enjoyment of life, and requires the prompt action of a court of equity. Wood on Nuisance, 566; Wahle v. Reinbach, 76 Ill. 322; Ross v. Butter, 19 N. J. Eq. 294; Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. 205. A privy, however, is indispensable in connection with the use of premises for school purposes, and before a court would be warranted in abating it by means so summary there should appear a strong and clear case of pressing necessity. Before the party seeking the injunction is entitled to the relief it must clearly appear from the proofs that injury will necessarily follow the use of the privy. In this case over fifty witnesses were examined on the subject of the contemplated use of the privy by the school children corrupting the water in appellant’s well. There is great diversity of opinion expressed. We can not, for the reason that it would malee this opinion too lengthy, discuss in detail, the testimony of this multitude of witnesses. A careful examination of it has satisfied us that a decree enjoining the use of the privy was not warranted upon the theory that the water in the well would be corrupted. It appears that appellant’s premises and the school premises are on elevated ground; that the decided trend of the surface is from the well toward the privy and beyond, to a small ravine in which is placed a tile drain; that the surface at the well is nearly two feet higher than the surface at the privy; that the privy was sunk in a hard clay soil, and that the hard clay through which the well was sunk extended four or five feet lower than the bottom of the vault. Whether the matter contained in a privy vault will contaminate the water in a well located forty or fifty feet away depends entirely upon the formation of the surface and the constitution of the soil in which the privy vault is sunk. If there is a trend of the surface from the privy to the well the dangers are greater than if the trend is in the other direction, because the next lower strata usually follow the surface. If the vault is sunk in a gravelly and sandy soil instead of clay the dangers are greater, because liquid matter more readily percolates the former than the latter. In view of the relative location of the well and privy, and the testimony of the witnesses most familiar with the composition of the soil into which the vault was sunk, we can not but commend the action of the Circuit Court in refusing the injunction upon the first ground urged.
Whether the privy will by reason of noxious smells render the lives of appellant’s family, dwelling seventy-two feet away, uncomfortable and miserable, depends entirely upon how it is used and kept. Until it shall be used and kept in such manner as to make it a nuisance, on that ground appellant is not entitled to an injunction.
We do not think' the court was warranted under the circumstances in allowing as damages against appellant the 840 paid the teacher for the month of September, when no school was taught. Doubtless to conduct the school without a privy to use upon the premises would occasion much inconvenience, but certainly not more for the month of September than October. The school was conducted in October without a privy; and we do not feel that the directors were warranted in refusing to allow it to be taught in September.
The court erred in allowing as damages, attorney fees, in the absence of proof that the charges were usual and customary. Steele v. Thatcher, 56 Ill. 257; Jevne v. Osgood, 57 Ill. 340.
The decree will be affirmed so far as related to the order dismissing the bill, and reversed so far as relates to the assessment of damages, and the cause will be remanded for the purpose of enabling appellees to make additional proofs upon the suggestion of damages.
Affirmed in part, reversed in part and remanded.
