78 Ky. 400 | Ky. Ct. App. | 1880
delivered the opinion of the court.
This action was instituted by L. L.( Warren and others in the Louisville chancery court against the Louisville Coffin Company, alleging, in substance, that the issue of smoke, soot, and cinders from the smoke-stack of the defendant’s factory is a nuisance to the plaintiffs, who live in the vicinity of the factory and own the property on which they reside. They sought and obtained an injunction in the action, and from that judgment this appeal was taken.
The ground on which the appellant’s factory stands is in the interior of the square bounded by Walnut, Third, Chestnut, and Fourth streets. Warren’s residence is on the corner of Fourth and Walnut; Pindell’s residence is between Third and Fourth, on Walnut. The latter is the owner, also, of two houses on Third street. Warren and Pindell are the appellees here, and were the plaintiffs below.
Some four or five }mars prior to the institution of the action the appellant became the purchaser of a lease cov
The factory is a substantial brick building, three stories high, and the cost of its construction, including the machinery, is not less than fifteen thousand dollars. The smokestack of which the complaint is made was erected in the year 1870, and has been in use since that date, is fifty-five feet in height, and overlooks the buildings surrounding it. It is alleged in the petition "that the machinery of this factory is propelled by steam, and that a column of smoke, soot, and burning embers pours almost constantly from this smoke-stack, and frequently the smoke, soot, and cinders are carried by the wind over the. premises of the plaintiffs, enveloping their windows and doors, and rendering the atmosphere unwholesome for respiration; that their buildings are in danger from the burning embers, and their tenant-houses less valuable for rental, &c.; that the factory is located in the midst of a square almost entirely occupied by buildings for residences and light fancy stores; that some of the buildings have taken fire from the embers emanating from the smoke-stack, and the rates of insurance have been greatly increased.” These allegations are denied by the answer, and by way of defense, it is also alleged that a steam planing mill was continuously operated on this ground for three years prior to the purchase made by the appellant, and that appellant used the same steam power and smoke-stack in the mill and factory that had been used on the leasehold during the last seven years past, and the volume of smoke, soot, &c., was no greater than it had been, during the entire period.
The depositions of many witnesses have been taken in the ■case, and much conflicting testimony is presented in the record as to the effect the operating of appellant’s factory has on the adjacent property, as well as the extent of the injury and annoyance resulting to those who occupy residences on this square. The discomfort produced by smoke, soot, &c., from the running of large factories in cities has not, perhaps, been exaggerated by those who have testified; •and with reference to the particular case, when looking alone to the testimony offered by the appellees, it can scarcely be maintained that the only injury sustained is the annoyance usually incident to such buildings. This testimony, how■ever, when considered in connection with that offered by the appellant, leaves the mind in doubt as to whether the parties complaining have sustained any substantial injury.
The rule that ‘ ‘ any interference with our neighbor in the ■comfortable enjoyment of life is a wrong which the law will redress,” must be considered in its application with reference ■to the condition in which the party has placed himself who is making the complaint.
One living in a city must necessarily submit to the annoyances which are incidental to a city life. It must be recollected that manufacturing establishments are necessary and indispensable to the growth and prosperity of every city, and while the cleanliness and beauty of that part of a city adorned by ■costly edifices may be marred by the erection of the foundry
This condition of things is realized in nearly the entire central part of the city, all of the inhabitants being more or less-annoyed by the smoke and soot settling on their premises. The right of the chancellor to grant an injunction where the-injury is irreparable cannot be questioned, but, on the facts of this case, this power should not have been exercised. While a mere acquiescence in the existence of a nuisance for seven years, or even a longer time, will not ordinarily preclude the party from abating it, still, where one stands by and permits the erection of buildings, as in this case, and their use for the purposes for which they were constructed for seven years, it becomes very persuasive evidence that the-injury complained of is such as is incidental to like improvements and common to the entire population on this square. Some of the residents find no evil results from the location- and erection of the factory, while others regard it as a nuisance. In the case of Robinson v. Baugh (9th Michigan), which goes farther in sustaining the judgment below than any case to which our attention has been called, the opinion is-based on the fact that the nuisance complained of caused substantial injury to the dwellings, and affected not only the comfort but the health of the residents. Besides, the defendant’s works in that case had been in operation but a short time, were-not expensive or of a permanent character, and could be removed without much inconvenience or cost.
In that case it-is-said: “Extreme claims must give way, and men must yield somewhat, in a spirit of accommodation and concession, and measurably recognize and respect the
In the present case, the proof shows that, with the escape of steam through the smoke-stack,' the danger from fire is removed and the annoyance greatly lessened; and much of the testimony introduced by the appellees applies to the condition of the property previous to the making of this improvement. We think, in a case like this, where the property has been used for the same purposes for a number of years, and expenditures made that, if rendered valueless, must result in the financial ruin of the owners, the application for an injunction must be sustained by strong and convincing testimony; in other words, a plain case'of nuisance, and \ with it- irreparable injury, must be established. While the ' inconvenience and annoyance to the two appellees in this" case must be conceded to exist, the facts developed do not authorize an interference by the chancellor, and the judgment below is therefore reversed, with directions to dismiss the. petition.