24 Fla. 103 | Fla. | 1888
delivered the opinion of the court:
There is a motion in this case for an order of injunction pending the appeal. Finding it necessary to understand the merits of the case in order to decide the motion, we think it well to dispose finally of all the questions involved as to the nuisance complained of.
The complainants, who are appellants here, filed their Mil for an injunction, alleging that one of them, N. E. "Shivery, has built and owns a hotel in the city of Gaines-ville, located near the court house square, around which •cluster the principal mercantile business houses of said city — that the hotel fronts on "West Main street, and stands in the midst of one of the most densely built and populous portions of the city, which contains over five thousand inhabitants ; and that he has leased said hotel to his co-complainant, Wm. T. Jackson, who purposes keeping it for the accommodation of the public. That on the north side of said hotel is a lot owned by the defendant, Ida Streeper,
It is further alleged that if the defendants are allowed to use said building for a livery stable, being so near the hotel, it will cause irreparable injury to the hotel property, and business, and render the same almost worthless. That the said building is immediately under the windows' of the sleeping apartments of the hotel, and, having a wooden floor, raised up some distance from the ground, the continual noise from the stamping of horses thereon, day and night, will so disturb the guests of the hotel that quiet and sleep will be rendered almost impossible; and the accumulations of filth and flies about said stable, and the noisome smells, will destroy the usefulness and fitness of the hotel property for its intended purposes, and, that, unless restrained, defendants will speedily convert said building into a livery stable. Wherefore injunction is prayed.
The court granted a temporary injunction.
The separate answer of the Streepers and that of Davis and Eaireloth, admits the allegations of the .bill as to ownership, location and renting of the property and the intended use of the one story brick building for a livery stable.
Davis and Eaircloth admit that Jackson tried to dissuade them from occupying the building for a livery stable, but say they were and have been unable to procure any other building as conveniently located, and they informed Jackson that if he would point out any they could lease which would be as suitable for their business, and they could be relieved from their contract with the Streepers, they were willing to surrender the building and not occupy it for their stable. They further say that where there horses are to be kept they intend to remove the wooden floor, so that the stamping complained of cannot occur. They also deny the allegations as to filth, flies, noisome smells and disturbance of guests of the hotel, adding that the horses are to be kept on the north side of the stable and the vehicles on the south side.
A motion was made to dissolve the injunction on bill and answers, the latter supported by affidavits to the effect that the use of the building for a livery stable would not be a nuisance. The court granted the motion, and from that order comes this appeal.
Some rules which should govern in equity in cases like this have been given by this court in Thebaut and Glazier vs. Canova, 2 Fla., 143. That was a case where it was sought to enjoin the erection of a saw mill in the city of Jacksonville on the ground of irreparable injury to the complainants, danger to their property from fire, and noise and smoke that would interfere with the comfort and happiness of themselves and their families, also affecting their health. The court says: “ It is not enought that a complainant should allege in his bill that the injury will be irreparable to himself or to his family or property, but he
On motion in that ease, in its main features not unlike the one before us, the court below granted a preliminary injunction, and upon the coming in of an answer and affidavits, refused to dissolve it. But the Supreme Court ordered it dissolved; and it is apparent this was done because the operation of a saw mill in a city could not be deemed in itself noxious, and the proofs, being mainly but the expression of opinion, were not sufficient to show that it would be noxious or dangerous to adjoining property, or so offensive and disagreeable as to render life uncomfortable.
This was in accordance with a distinction running through all the books, though sometimes drawn in con
“If the injury be doubtful, eventual or contingent, equity will not enjoin and “ mere diminution in the value of property, without irreparable mischief, will not furnish foundation for equitable relief.” Rhodes vs. Dunbar, 57 Penn. St., 274; Keiser vs. Lovett, 85 Ind., 240; Ross vs. Butler, 19 N. J. Eq., 294, in which it is held also that matters that are an annoyance by being merely disagreeable or unsightly, as a well kept butcher shop or a green grocery near a costly dwelling house, or any other business that attracts crowds of orderly persons, or numbers of carts and carriages, are not nuisances.
The general doctrine applicable to cases like this on which equity courts will interfere to restrain a nuisance is well expounded in Rouse et al. vs. Martin et al., 75 Ala., 510, and the conclusions accord with those we have quoted from other cases. See also 1 High on Inj., sec. 774, 2 Story’s Eq., sec. 925.
A careful examination of the authorities satisfies us that though, in the language of High on Inj., sec. 772, “ The
Counsel for appellants argue the case as if a livery stable closely adjoining a hotel cannot be otherwise regarded than as prima fade a nuisance. We do not find this view in accordance with the authorities. See Kirkman vs. Handy,
It will be found that the cases in which livery stables have been held to be nuisances either in equity or at law, are cases where the proofs established the fact — in some instances the court holding théir final decision till the fact could be tested by actual experience. Even in the case of Coker vs. Birge, the Supreme Court, on the second appeal, left the final adjudication to be determined upon the opinion of a jury on the facts.
The conclusion at which we have arrived is that in the case before us the court did not err in dissolving the injunction. But it is not to be understood that this conclu
The principle common to all cases of nuisance to dwell
Whether the case shall be held to await the test, or the bill be dismissed without prejudice, we leave to the court below.
The decree is affirmed, and the case will be remanded for proceedings in accordance with this opinion.