Rouse v. Martin

Dec 15, 1883

Versions:75 Ala. 510

SOMEB.YILLE, J.

The appeal is from a decree of the chancellor dissolving an injunction, which had been granted at the instance of the appellants to interdict the appellees from erecting a structure, with machinery for ginning cotton, in proximity to the dwelling-houses of the complainants and cer-' tain of their tenants in the city of Greenville. The nearest point of the proposed gin-house, which is to be a wooden structure, would be within about eighty-eight feet of the dwelling of one of the complainants, on a lot owUed by the defendants on the opposite, or south side of a public street. It is alleged by the complainants that the business of ginning seed cotton by steam-power, as purposed by the defendants, will work irreparable damage to them, -by rendering their houses uncomfortable and dangerous fоr occupation as places of residence, that the hazard of lire will be greatly increased, the noise of the machinery discomfort them, and that thе atmosphere will be rendered impure and unwholesome by smoke,, dust, small particles of lint-cotton, decaying cotton seed, and other filth necessarily incident to the business, in 'which much stock will probably be used in hanling with wagons.

The foundation of this jurisdiction of equity, in assuming to restrain nuisances, rests in the imperative necessity of prevеnting irreparable injury and a multiplicity of suits at law.—State v. Mayor, etc., of Mobile, 5 Port. 279 ; 1 High on Inj. § 739 ; 2 Story’s Eq. § 925. It is the exercise of an extraordinary power, which, as was long ago said by this court, should be “cautiously and spаringly exercised.”—Ray v. Lynes, 10 Ala. 63. An injunction, therefore, of a private nuisance will generally be granted only where there is a strong and mischievous case of pressing necessity,'and not because of a trifling discomfort or inconvenience suffered by the party complaining. Coker v. Birge, 54 Amer. Dec. 347, note, p. 351 ; St. James Church v. Arrington, 36 Ala. 546.

The rule has long been recognized as quite different ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍where the thing sought to be рrohibited is goer se a nuisance, and wdiere it is not unavoidably noxious in itself, but may prove so according to circumstances, or otherwise. In the first class of cases an injunctiоn will ordinarily be granted without waiting *514for the result of a trial at law. In the second class the court will generally refuse to interfere until the matter has been tried at law.—St. James Church v. Arrington, supra; Adams’ Eq. (7th Amer. Ed.) 211, note 1.

The cаses are numerous where equity has intervened to prevent the carrying on of a business or vocation, although lawful in itself, on the ground of its being obnoxious to the health, comfort or convenience of neighboi'ing residents, by reason of disagreeable noises, offensive odors, noxious gases and the like. 1 High on Inj. §§ 772-73. No general rule can be laid down sufficiently specific and certain to apply to all cases; but, as often said, each case must be decided upon its own particular state of facts, and the whole question must be largely one as to degree, being determined in the light of human experience.

Where the injury complained of is hot a nuisance per se, but may become so by reasоn of circumstances — being uncertain, indefinite or contingent — equity, as we have said, will not interfere. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍So the public benefit will be considered, and when it preponderates over the private inconvenience, no relief will generally be granted.—Dorsey v. Allen, 85 N. C. 358, (39 Am. Rep. 704). It is a rule of universal recognition, that in doubtful eases an injunction will always be denied, or dissolved on motion when granted ad interim. A very strong case must, thеrefore, be made by the bill,.and if there be a reasonable doubt as to the probable effect of an alleged nuisance, either on the proof, affidavits, or on the construction of the facts stated in the bill, there will be no interference until the matter is tested by experiment in the,actual use of the property.—Wood on Nuisances, §§ 796-97 ; 2 Story’s Eq. Jur. § 924a, Note 1; 1 High on Inj. § 788. As said in Kingsbury v. Flowers, 65 Ala. 479 “ there must be such a clear, precise statement of facts, that there can be no reasonable doubt, if the acts threatened are completed, grievous injury will result.” Hence, the following rule stated by a recent author : “ Where,” he says, “ an in junction is asked to restrain the construction of works of such a nature that it is impossible for the court to know, until they are completed and in-operation, whether they will or will not constitute a nuisance, the writ will be refused in the first instance.” 1 High on Inj. § 743. Great caution, he further observes, should always be exercised before interfering with establishments which have a tendency to promote public utility or convenience ; and in cаses of this nature, “ equity will not enjoin the lawful use of such property in a city, when, by the proper application of scientific appliances and maсhinery, the evils complained of may be remedied ; and, in such case, the court will go no further than to require such appliances to be used.” 1 High on Injunc. § 787; Green v. Lake, 54 Miss. 540 (28 *515Amer. Rep. 378). And where it is sought to restrain ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a busi ness establishment, which is not per se a nuisance, but only liable to become such by the manner in which it is carried on by the proprietor, the course now generally adopted by the courts is stated to be, to hold the bill until the objectionable results ■can be remedied by scientific and skillful appliances, at least where the answer discloses that such remedies are practicable. Wood on Nuisances, § 823. But this is a matter resting greatly within the sound discretion of the chancellor.

The law is settled, on sound reasons, that the mere fact of the diminution of the value of complainant’s property, or the increased risks from hazard of fire, occasioned by a structure erected by a defendant upon a lot adjoining the complainant’s premises, without more, is unavailing as a ground of equitаble relief. — 2 Story’s Eq. Jur. § 925 ; Morris v. Prudden, 5 C. E. Green, 530; 1 High on Inj. § 788 ; Wood on Nuis. § 511, This is one of the many risks and discomfits naturally incident to town or city life, which persons of prudence can not fail to reasonably anticipate.—Ray v. Lynes, 10 Ala. 63.

Smoke, offensive odors, or disagreeable noise and vibration may of course constitute a nuisance so imperiling the comfort of one’s existеnce, his health, or the safety of his property, as to call for injunctive relief at the hands of a court of equity. This is upon the principle, that if one makes an unreasonable or unlawful use of his property, “ so as to produce material annoyance, inconvenience, discomfort or hurt to his neighbor, he will be guilty оf a nuisance to his neighbor.”—Campbell v. Seaman, 63 N. Y. 568 (20 Amer. Rep. 567). It it a just sequence of the maxim, Sie títere ttw at alienum non Icedas. In determining the question of interference, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court will look at the facts which are stated in the bill, giving little or no weight to the mere opinion of the cоmplainant that they will constitute a nuisance, unless such a conclusion clearly follows by proper inference from these facts. So of the denials of the answer, on a motion to dissolve an injunction which may have been granted.—Catlin v. Valentine, 9 Paige, 575 (38 Amer. Dec. 567) ; 1 High on Inj. § 790.

Let us briefly apply the foregoing principles to this case. It is clear that the building sought to be erected by the defendants can not be regarded as a nuisance, but only the use to which it is to be devoted. This is admitted to be a useful business, which is common to the country, and one which should not be discouraged by too ready an interference by the strong arm of the courts. Taking the facts as alleged in complainants’ bill, and discarding all allegations which may properly be regarded as mere matters of opinion, and keeping in view that the injury sought to be prevented is merely apprеhended by an-*516■tieipation, and must, therefore, be a matter greatly of speculation, we can not say that the chancellor has come to an errоneous conclusion. We do not clearly see that it is not reasonably possible for the business to be conducted so as not to be a nuisance. In Ray v. Lynes, 10 Ala. 63, this court, uрon like principles, declined to enjoin the erection of a black-smith shop upon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a lot adjoining the dwelling-house of the complainant in the town of Tuskegee. And in St. James Church v. Arrington, 36 Ala. 546, it refused to restrain the erection of a livery stable in close proximity to a church. It was said by the court, that, admitting the strong probability that inconvenience and discomfort might result to the complainants from the use of the stable, “ yet the injury apprehended is not of that ‘-vast and overwhelming ’ character which would justify а departure from the general rule above stated, which, as we have seen, denies an injunction in such cases, in advance of a trial at law.’", Kingsbury v. Flowers, 65 Ala. 479 ; Green v. Lake, 54 Miss. 540 (28 Amer. Rep. 378); Dorsey v. Allen, 85 N. C. 358 (39 Amer. Rep. 704); 3 Wait’s Act. &. Def. 703, § 9.

The decree of the chancellor dissolving the injunction must be affirmed.