207 Mich. 456 | Mich. | 1919
The above named 12 plaintiffs are separate owners and occupants of lots in the eastern part of the city of Detroit, Michigan, either within the territory bounded by VanDyke, Lafayette, Shipherd and Agnes avenues, in said city, or in the immediate vicinity thereof, and have united in this bill of complaint to obtain an injunction for abatement of a private nuisance they charge defendant has developed and is maintaining in said territory, to their annoyance and damage.
The Frank M. Pauli Co., defendant, is a corporation engaged in general contracting, principally confined to carpenter contracts and woodwork, in connection with which it maintains and operates on lots in the above bounded block fronting on Shipherd avenue, about half way between Agnes and Lafayette, a lumber yard and planing mill, or “interior trim factory” as defendant prefers to name the mill portion of the plant. The relief asked in plaintiffs’ bill and granted by the trial
There are no restrictions to use or kind of buildings resting upon defendant’s land where the activities objected to are carried on. The whole block was originally. unrestricted though restrictions are found in a few transfers of recent date. Various portions of the block have been and are yet more or less used for business purposes. Plaintiffs base their claim of right to relief solely upon the proposition that the operation of defendant’s mill, or factory, is to them a nuisance as and where operated and located, near their homes and property in a residential section of the city, which they are entitled to have abated as such.
The specific allegations in plaintiffs’ bill as to objectionable features in defendant’s factory and business as operated and conducted in that locality are, in brief, disturbing and distracting noises from the machinery, loud shouting of or to the workmen and sounding of a heavy gong at certain hours as notice to employees of resumption and discontinuance of work, sawdust and smoke which at times- is emitted from the mill and blown by the wind over that neighborhood, extra fire risk from the nature of the business and manner of conducting it, using for private purposes and obstructing Shipherd avenue and the alley running north and south through said block at the rear of defendant’s property, and the noisy, offensive congregation in and use of said alley by defendant’s employees who often gather there and loudly indulge in profane and foul language close at the rear of the homes of certain of the complaining parties, to their annoyance.
Plaintiffs emphasize the fact that the general lo
This district is bounded and traversed by some 15 north and south streets, or boulevards, and by five running east and west, named Jefferson, Lafayette, Agnes, St. Paul, and Kercheval avenues. It is now a .populous, well built-up' portion of the city, fairly shown to be in its general character a residential district east of'Grand Boulevard and south of Kercheval avenue. There are scattered through it business places on certain of the streets, consisting as a rule of small shops, stores and other lines of business to supply local trade, such as meat markets, groceries, bakeries, drug stores, shoe repair, tailor and bicycle shops, public garages, etc. Kercheval avenue on its north has a double-track car line along it and is concededly a business street, as are certain portions of Jefferson and Lafayette avenues.
The quality and character of neighborhoods and streets varies materially in different portions of that part of Detroit. Burns, Iroquois and Seminole avenues in the so-called “Indian Village” are recognized as amongst the finest and most desirable residential streets in the city, and Seyburn avenue, 70 feet wide, running north and south less than 175 feet west of Shipherd, is described as an attractive, strictly residential street with many fine homes upon it. The lots on its east side extend through to Shipherd, with the residences upon them fronting west on Seyburn. Other parts of the district are of a different quality and less
Plaintiffs Oostdyk, Mackenzie, Bridge, Dempsey, Trybom, and O’Brien, own lots in the east half of this block fronting on VanDyke and extending back to the alley, those of the three last mentioned being directly across the alley from defendant’s factory which extends about 90 feet along it. Plaintiffs Craige and Mackenzie own land on the east side of VanDyke avenue, the Beckwith Company owns land on the east
Frank M. Pauli, who testified to being engaged in the building business in Detroit for 35 years, was in the employ of others during the earlier period of his activities and just when he became a building contractor for himself is not disclosed, but in 1909 he purchased a 30-foot lot in this block .fronting on Ship-herd avenue, extending east a depth of 168 feet to the alley, from two contracting carpenters named Brown and Farr who had some time before erected upon the alley a comparatively small one-story wooden building, 50x30 feet, used by them in their contracting business as a carpenter shop, or interior trim factory, which was equipped with a shaper, band-saw and ripsaw. For some time Pauli used this building and: equipment as it was when purchased, employing in it “about six” men. The following year he bought a 30-foot half lot just north of his first purchase, which had upon it a cottage fronting Shipherd avenue with a barn at the rear upon the alley, and began to expand his business in that locality.
The so-called Frank M. Pauli Co. had been in existence about eight years and was incorporated about five years prior to the hearing of this case, in May, 1918. Its stockholders were principally members of the elder Frank Pauli’s family, his son Frank G., who had previously worked for his father, becoming a member of the organization and active in its management. As its contracting business expanded defendant
When Pauli, Sr., made his first purchase that portion of the city was sparsely settled and scantily improved in comparison with its present condition. He for some time employed but few men and used but little machinery, the business being conducted with comparatively little noise, dust or confusion, but after the company was incorporated, men, material and machinery were increased with a marked increase of dust, smoke, noise and obstruction of the street and alley until objections and complaints began to be made by those living in the vicinity which were apparently resented and treated with scant consideration until a
Amongst its varied equipment of mechanical appliances for shaping wood defendant has about 20 saws for different purposes — such as a jig-saw, rip-saw, swing-saw, cut-off saw, etc. A swing-saw.put in operation in 1915 and a gong installed to signal employees are particularly dwelt upon by plaintiffs as producing penetrating sounds which they found intolerable. The loud ring of this particular saw is emphasized by various witnesses as the culminating annoyance from defendant’s factory, being described by them as “fierce,” such that “no one can stand it,” resembling “the last squeal of a dying pig” or the note of “these peanut-stand whistles which the city stopped” magnified “about a thousand times,” a “high-pitched, screeching whistling” sound which “goes through the house whether the windows are closed or not and you cannot get away from it.” It was shown that defendant’s factory work starts at 7 o’clock a. m. when the gong
Without further details it may be said that the evidence well supports the conclusion of the trial- court that in the conduct of its business defendant has in several of the particulars complained of been guilty of maintaining a private nuisance against the rights of plaintiffs which it is within the jurisdiction of a court of equity to enjoin at their instance.
The trend of the story as a whole indicates that under Pauli, Jr.’s, management the business has been enlarged and conducted largely on the theory that the owner has a right to do as he pleases with his own, forgetful of the fact that defendant was not the ex-
That defendant’s business as conducted at the time this suit was begun and tried had developed into a private nuisance in certain of the particulars complained of, which should be and properly was enjoined by the trial court, we are well satisfied; the more serious question for consideration is just how far the injunction should go, for the restraining decree issued by the trial court, from which defendant appeals, completely and perpetually closes down its factory and destroys its established business in that locality.
Application was made to the trial court for a rehearing and modification of the decree, limiting it to enjoining the claimed objectionable features complained of without absolutely prohibiting the business to be continued. Insisting that the matters complained of were greatly exaggerated, defendant claimed and proposed to further show that by abandoning certain usages, changes in machinery and resort to more careful management and modern methods, the business can be continued without being a legal nuisance. As the case now stands there is a measure of showing that the objectionable features constituting a nuisance can largely be avoided by alterations, discontinuance of certain objectionable things, and improved appliances. Pauli, Sr., is not shown to have actively participated in the hostilities which developed and was apparently a fair and candid witness as to the situation when on the stand. In the application for a rehearing he offers with suggestion of method to do whatever the court may direct to eliminate the par
“Neither has a merchant or trader or manufacturer, or any person, no matter how great the necessity of his business, any right to use any part of the highway for the deposit, exhibition or sale of his goods. Neither has he a right to conduct his business in such a way as to keep goods constantly standing on the walk, or teams constantly or for any considerable portion of the time employed in front of his premises engaged in loading or unloading goods, and the fact that the same is necessary in the course of his business is no excuse; it is his duty to carry on his trade where he will produce no serious annoyance to the people, as public convenience and necessity are paramount to the ends of trade or individual necessity.”
Upon the question of whether the injunction goes too far in the first instance, we start with the universally recognized rule that equity courts ought not to prohibit the conduct of a lawful business by a defendant on his own unrestricted premises except as a last resort to restrain an otherwise unavoidable nuisance existing in violation of a complaining party’s rights.
The duty of the court in that particular is thus well summarized from abundant authority in 14 Enc. of PI. & Pr. p. 1148:
“A court of equity is always reluctant to grant a perpetual injunction against the carrying on of a legitimate business. Where the court finds that such an establishment as conducted, is a nuisance, it should allow the defendants to show, if they can, that, by the use of proper methods and appliances, it is possible to continue the business in the same place without its being a nuisance. Where this can be done, a decree absolutely enjoining the defendants from further conducting such business is too broad; the injunction should be limited to such uses as create the nuisance, leaving the right to carry on the business in a proper manner.”
In Chamberlain v. Douglas, 24 App. Div. 582 (48 N. Y. Supp. 710), involving an injunction restraining the operation of machinery in a planing mill by steam power, the court said:
“Injunctions restraining the carrying on of a legitimate and lawful business should go no further than is absolutely necessary to protect the rights of the parties seeking such injunction. When a person is engaged in carrying on such business he should not be absolutely prohibited from doing so, unless it appears that the carrying on of such business will necessarily produce the injury complained of. If it can be conducted in such a way as not to constitute a nuisance, then it should be permitted to be continued in that manner.”
In Green v. Lake, 54 Miss. 540, where the nuisance complained of was the noise and refuse from a mill,
“A perpetual injunction against the lawful use of property in a city ought not to be decreed if the owner can apply to his steam power and machinery such alterations and appliances as will relieve them from the special and unusual annoyances complained of in the case. * * * If the grievances can be removed by the aid of science and skill, a court of equity will go no further than to require those things to be done. The legislature and the local municipal authorities have ample power to regulate the business of the city so as to produce as little inconvenience and annoyance to the different classes of its population as possible. Noisome and offensive trades may be assigned to certain limits.”
To like effect see, also, Collins v. Wayne Iron Works, 227 Pa. 326 (76 Atl. 24); McCarty v. Carbonic Gas Co., 189 N. Y. 40 (81 N. E. 549, 13 L. R. A. [N. S.] 465, 12 Ann. Cas. 840); Miller v. Webster City, 94 Iowa, 162 (62 N. W. 648); Windfall Manfg. Co. v. Patterson, 148 Ind. 414 (47 N. E. 2, 37 L. R. A. 381); McMenomy v. Baud, 87 Cal. 134 (26 Pac. 795): Lorenzi v. Market Co., 19 Idaho, 674 (115 Pac. 490); Weaver v. Kuchler, 17 Okla. 189 (87 Pac. 600). This court has consistently recognized such to be the general rule. Gilbert v. Showerman, 23 Mich. 448; Edwards v. Mining Co., 38 Mich. 49; Shepard v. People, 40 Mich. 487; Ballentine v. Webb, 84 Mich. 38 (13 L. R. A. 321); Northwood v. Asphalt-Paving Co., 126 Mich. 284 (54 L. R. A. 454); Washington Lodge v. Frelinghuysen, 138 Mich. 350.
In Ballentine v. Webb, supra, where this court modified a decree perpetually enjoining the maintenance of a slaughter house devoted principally to butchering hogs received in carload lots to the number of about 300 a week, it was held that defendant’s business when properly conducted was not of such a character as to
“Defendant’s business, established under the circumstances of this case and conducted by him on his own premises, will not be enjoined, because it cannot be carried on without some degree of offense and annoyance to those living near it. It is only when_ it reaches the point of discomfort where it becomes injurious. to health that the injury can be said to be irreparable so as to call forth the extraordinary power of a court of chancerv to destroy it.”
It is not claimed that defendant’s wood-working industry is a nuisance per se. Inherently, it is not when properly conducted unhealthy, filthy or unwholesome, nor disagreeable and offensive to persons generally. The bare fact it may not be acceptable as a near neighbor to plaintiffs and may produce some discomfort or inconvenience to those nearby will not in itself justify its total elimination by injunction. The court has no concern with the indicated effort of plaintiffs to banish business from this block. Most of them invested in this unrestricted subdivision some time after defendant’s and other business enterprises of more or less magnitude were established there, purchasing advantageously and at an opportune time. Those nearest defendant’s plant conceded their holdings have much advanced in value since they purchased. None of them expressed a desire to sell at the admittedly handsome profit obtainable or were willing to name a price they would accept. This unrestricted property had been purchased to a marked extent by those who did and do use their lots for residence and business purposes in combination, the business generally being
Defendant’s machinery is exclusively operated by electrical power, each machine by an independent motor. No fuel is consumed for power purposes. The smoke problem in connection with its heating plant would be no different than that of any business building or apartment of equal size. That and the matter of fire risk are proper subjects in the first instance for municipal control. A smoke consumer has been installed by defendant under direction of the city authorities and an extension of its chimney or change of fuel may, and defendant claims will, obviate the charged smoke nuisance. ' The offensive conduct of employees and use of the highways amounting to nuisances can and must be eliminated.
The sounding of a gong or whistle on defendant’s premises to indicate the starting or stopping of work, or for other purposes rs was the custom can and must, be discontinued, as must also the noisy use of thd‘ swing-saw or other appliances more recently installed in the enlargement of defendant’s plant which occasioned the shrill, penetrating and disturbing sounds complained of. The escape of sawdust and other light refuse from defendant’s mill to be carried by the wind around the neighborhood and upon plaintiffs’ premises must be prevented and, in fine, the offensive things in the conduct of the business specifically, pointed out and found by the trial court to constitute legal nuisances will be enjoined.
It is claimed for defendant that by change of construction, methods and appliances which it proposes these objectionable features can be eliminated. Defendant’s business as originally and for some years conducted occasioned little if any complaint and cannot be held to have been a legal nuisance. Plaintiff
We conclude that upon the record the decree in the first instance should be modified to imposing correction of and enjoining those offensive features in the conduct of defendant’s business particularly complained of and found to be nuisances, in harmony with the course adopted in Ballentine v. Webb, and Northwood, v. Asphalt-Paving Co., supra.
The modified decree prepared for settlement may in form and general outline follow defendant’s proposed substitute in the printed record. So modified the decree of injunction will stand affirmed with costs to defendant in this court.