Oehler v. Levy
85 N.E. 271
Ill.
1908
Check Treatment
Mr. Justice; Hand

delivered the opinion of the court:

The first contention made by the appellant is, that the Appellate Court erred in holding that he was guilty of maintaining a nuisance upon his premises. The evidence clearly shows that appellant was the owner of and in possession of the premises adjoining the flat-building of appellees ; that he kept upon his premises about twenty head of horses; that he failed to remove the manure and urine deposited by said horses upon said premises at such times and in such a manner as to prevent offensive odors from arising therefrom, which penetrated the several flats in the building of complainants and contaminated the air therein and caused disease and sickness among the occupants of said building, and that the horses kept in said building, and the men who cared for and drove them, when in and about said building, made a great deal of noise in the night time, which prevented the occupants of said flat-building from sleeping, and that the rental value of said premises, by reason of the misconduct of the. defendant in the particulars hereinbefore pointed out* was greatly reduced.

In Wahle v. Reinbach, 76 Ill. 322, on page 327, it was said: “Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance.” And in Wente v. Commonwealth Fuel Co. 232 Ill. 526, on; page 333: “If a business is offensive to such a degree as to materially interfere with ordinary physical comfort, measured, not by the standard of persons of delicate sensibilities and fastidious habits, but by the habits and feelings of ordinary people, and the damages are of a nature which cannot be adequately compensated for in an action at law, a court of equity will grant an injunction.” And in Chicago, Milwaukee and St. Paul Railway Co. v. Darke, 148 Ill. 226, on page 232: “It cannot be doubted that at common law mere noise in the immediate vicinity of the premises, and especially of the dwelling house of a land owner, may be of such character as to constitute an actionable nuisance, remediable by an action on the case for damages or by injunction.” And in High on Injunctions (3d ed. sec. 780) : “The use of a building adjoining plaintiff’s, in a large city, as a stable and the keeping of horses therein, causing annoyance and loss to plaintiff in his business as a lodging-house keeper, constitute such a nuis'ance as will be enjoined. So the keeping of horses in a stable adjoining plaintiff’s premises, and the noise resulting therefrom, with the fact of moisture and dampness passing through from defendant’s stable to plaintiff’s wall, afford sufficient ground for relief by injunction.” And it has been held that damages resulting from sickness, and discomfort caused by inhaling unwholesome vapors and enduring the foul stenches originating from conditions similar to those created by defendant, are of such a character as not to be adequately compensated for in an action at law and afford the basis of equitable- relief by way of injunction. Wahle v. Reinbach, supra.

We think it clear, in view of the evidence found in this record, and the law as announced in the text books and adjudicated cases, that the Appellate Court properly held appellant guilty of maintaining a nuisance upon his premises.

It is next contended by the appellant that the Appellate Court erred in holding that appellees were entitled to an injunction, as the appellant had not been held to be guilty of maintaining a nuisance in an action at law. It has-been repeatedly held by this court that where the legal right of a complainant in a bill for an injunction is clearly shown and the unlawful use of the defendant’s property which injured the complainant’s property is clearly settled, the complainant will be granted relief without a prior determination in a suit at law that the defendant’s use of his property constitutes a nuisance. (Wahle v. Reinbach, supra; Wente v. Commonwealth Fuel Co. supra.) In the Wente case, on page 533, it was said: “Where the legal right of -a complainant is clearly, established and the unreasonable and unlawful use by the defendant of its property to the injury of the complainant is also clearly proved, it is not necessary that the question should first be determined in a suit at law.” And in the Wahle case, which was a bill to enjoin the defendant from constructing a privy within a few feet of the complainant’s dwelling house and well, the court, on page 327, said: “Manifestly, no remedy in an action at law would be adequate in a case like the present. Upon what basis could the' damages be estimated for the sickness or discomfort caused by inhaling the unwholesome vapors, drinking the impure water and enduring the foul stenches originating from a structure of the description and relative location complained of? And to say that such a nuisance must be suffered to be created and continued until its character shall be formally determined at law would seem to be but little better than a mockery of justice to him whose residence is affected by it.” The facts alleged in complain-, ants’ bill in this case were practically undisputed, and, as was said in the Wahle case, to require complainants and their tenants to inhale the unwholesome vapors, endure the foul stenches arising from the offensive matter allowed to accumulate in arid about said stable, and deprive them of their rest at night by reason of the noise of twenty head of horses quartered within a few feet of their sleeping apartments and the profane and obscene language of appellee’s employees uttered immediately beneath their windows, until the character of the place maintained by the appellant was formally determined in an action at law, would, indeed, be a “mockery of justice” to the complainants and their tenants. The Appellate Court committed no error in holding that it was not necessary that the complainants should have established that appellant was maintaining a nuisance upon his premises in an action at law before they could maintain a bill to enjoin the further maintenance of the nuisance shown by the evidence in this case to exist upon said premises.

It is finally contended by the appellant that the Appellate Court erred in holding the appellees could maintain their bill, as it appeared appellant’s property was used as a place where horses were stabled before the flat-building of the appellees was constructed. The evidence shows that after the appellant purchased his property, and while appellees were the owners and in possession of their flat-building, he made several changes in the use of his building which made its use more offensive to persons occupying complainants’ adjoining property than it had been before it came into his possession. In the month of April preceding the filing of the bill he removed the horses from the basement to the room above the basement, and instead of placing the manure upon a wagon and hauling it away he stored it upon the premises. The stabling of the horses above the basement greatly increased the noise made by them, and the storing of the manure upon the premises instead of hauling it away increased the offensive odor and stench which escaped therefrom and penetrated appellees’ building, and the urine that fell upon the floor upon which the horses stood leaked through into the basement and penetrated the walls of appellees’ building- and contaminated the basement of their building. If, however, it were conceded that no changes had been made by appellant in the use of his building while he was in possession thereof or after the erection of appellees’ building, still the Appellate Court, we think, did not err in holding that an injunction should issue against appellant. The properties of the parties to this litigation are located in a portion of the city largely devoted to residence purposes, and the law seems to be well settled that the. fact that a party may be established in business in a particular portion of a growing city does not protect him from a bill for an injunction for maintaining a nuisance, if he actually maintains such nuisance, at the suit of a party who subsequently enters the same territory. In Bispham’s Equity (yth ed. sec. 442) it is said: “It was formerly thought that if a man erected a dwelling house in the immediate neighborhood of a factory where an offensive or noisy or dangerous trade, was carried on he was not entitled to his injunction because it was his own fault to move to the proximity of the objectionable trade. But this doctrine of coming to a nuisance (as it was termed) is now exploded, and the most recent authorities hold that the injunction will not be refused on that ground.” And in Campbell v. Seaman, 63 N. Y. 568, on page 584, it is said: “One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor’s land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as damnum absque injuria; but he cannot place upon his land anything which the'law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant or to use it in such way, only, as the neighboring nuisance will allow.” And in Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, the court quoted with approval the following from Weir’s Appeal, 74 Pa. St. 230: “Carrying on an offensive trade for any number of years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travelers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residence .of the citizens. This public policy, as well as the health and comfort of the population of the city, demands.”

It is assigned as cross-error that the Appellate Court erred in declining to direct the superior court to enter a decree requiring the appellant to remove the driveway from across the sidewalk in front of his premises, which connected his stable with the street. The appellees did not specifically pray for such relief, and it is not averred in the bill or shown by the proof that the appellees are specially damaged by reason of the construction of said driveway. It has often been decided to be the law of this State, that for an obstruction to streets not resulting in special injury to the individual the public only can complain. McDonald v. English, 85 Ill. 232; City of Chicago v. Union Building Ass. 102 id. 379; Barrows v. City of Sycamore, 150 id. 588; Guttery v. Glenn, 201 id. 275; Hamilton v. Semet Solvay Co. 227 id. 501.

It is also assigned as cross-error that the Appellate Court erred in not directing the superior court to enter a decree enjoining the appellant from keeping any horses in his building or upon the premises adjoining the property of the appellees. The nuisance created by the appellant consisted in the manner of the use of his premises, and while the direction to the superior court by the Appellate Court, when incorporated in the decree of that court, practically will prohibit the appellant from maintaining his stable upon

the said property, theoretically it does not. The Appellate Court was not, as it states in its opinion, prepared to hold, as a matter of law,—and neither is this court,—that a stable >may not be kept in a residence district of a large city in such manner that it would not be regarded as a nuisance, and for that reason it refused to direct the superior court to enter a decree enjoining the appellant from keeping any horses in his building or upon his premises. In this we think there was no error.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.