20 So. 2d 329 | Ala. | 1944
The City of Tuscaloosa, a municipal corporation of approximately 30,000 population, filed the bill in this case against the National Southern Products Corporation, Inc., and a number of named individuals, seeking the abatement of an alleged public nuisance arising from the operation of a manufacturing establishment for certain chemical compounds or oils, begun in April, 1943, upon property situated at the intersection of 12th Street and 14th Avenue in *318 said city. The demurrer interposed by the defendants to the bill was overruled, and from this decree the defendant, the National Southern Products Corporation, Inc., alone prosecutes this appeal.
The bill contains many details of facts concerning the alleged nuisance and the widespread area injuriously affected thereby, which we may here abbreviate as follows: The defendants are operating a chemical plant in a residential area in the City of Tuscaloosa in a location which is described as a densely settled residential area, and so established long before the operation of such plant. There are emitted from the plant fumes, gases, deleterious and unwholesome substances into the public streets, the public schools, and many residences, within a radius of one mile from said plant, all of which injuriously affect the health, comfort, and well-being of a substantial portion of the citizens resorting to the use of the streets, schools, and residences within said radius of one mile.
We are of the opinion that perhaps, in large part at least, the case is covered by statutory provisions. Illustrative is § 1081, Title 7, Code 1940, defining nuisances, as follows: "A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man."
And the definition of a public and private nuisance is found in § 1084, Title 7, Code 1940, as follows: "Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured."
And § 1085, Title 7, Code 1940, reads: "All municipalities in the State of Alabama may maintain a bill in equity in the name of the city to abate or enjoin any public nuisance injurious to the health, morals, comfort or welfare of the community, or any portion thereof."
As if to reinforce the right of the city to maintain a bill of this character, express authority is again rested with municipal corporations to abate public nuisances in §§ 505 and 506, Title 37, Code 1940.
That the averments of the bill establish a public nuisance within the definition of § 1084, supra, is too clear for further discussion. We had occasion to refer to some of these statutes in Martin Bldg. Co. v. Imperial Laundry Co.,
In the more recent case of Beam v. Birmingham Slag Co.,
In Romano v. Birmingham Railway, Light Power Co.,
In Martin Bldg. Co. v. Imperial Laundry Co., supra, it was observed that injunctive orders should be carefully drawn, and in no case should they restrain the defendant from doing more than is necessary to put a stop to the nuisance. The abatement of the nuisance is the object of the bill, and if that can be accomplished without material interference with the operation of defendant's business, that course should be pursued.
Like thought was expressed in Romano v. Birmingham Railway, Light Power Co., supra. There the Court observed: "The *319 injury here may be temporary, or it may be permanent. * * * If the structure is a nuisance, and will necessarily continue to be a nuisance, and is incapable of remedy by alteration, repair, or change of process, which would effectually correct the evil of its presence, it ought not to be allowed in the neighborhood where it has been set up. A like result would follow upon proof that the emission of noxious gas and odor has injuriously affected the value of complainants' property for residential purposes and will continue to do so, even though it may be correctable in the manner suggested by the chancellor, unless the defendant should evince a willingness and ask for an opportunity to apply that remedy. The proper practice in that event would be to retain the bill until that relief can be tested and the result ascertained."
But all of this in no manner affects the equity of the bill. For the burden rests upon the defendant to bring such matter forward if any such offer or suggestion is at all practicable in the instant case.
In the City of Selma v. Jones,
We have examined with care the authorities noted by counsel for defendants; among them: City of Prichard v. Alabama Power Co.,
There is suggestion in argument that we are at war, and that the bill should negative the fact that the chemical compounds manufactured are not essential to the war effort. We have given consideration to the war powers of the Federal Government in recent decisions. Brock v. City of Anniston,
But, in any event, if there be any such question, it would be purely defensive matter. It is well settled that the rules of good pleading do not require that complainant anticipate all possible defenses and undertake to negative or confess and avoid them. Such was the holding of this Court in Taylor v. White,
It results that the decree of the lower court is correct, and due to be affirmed. It is so ordered.
Affirmed.
THOMAS, FOSTER, and STAKELY, JJ., concur.