29 W. Va. 48 | W. Va. | 1886
The bill was filed in August, 1885, by the plaintiffs in the Circuit Court of Kanawha county to enjoin a. threatened nuisance. The plaintiffs were A. 0. Snyder, who owned a house on Washington street, and T. L. Broun, his tenant, Edward B. Knight, who as trustee of Sarah Sentz held the legal title to a house on the corner of Washington and Brooks streets, Sarah A. Sentz, John W. Sentz, the husband of Sarah, who with his family resided in said house, and Edward Penn, who owned and with his family resided in a house on Washington street. The bill alleged, that the defendants, the Cabell brothers, in July, 1885, commenced
The answer admits, that the defendants intend to .use said building, which they were erecting, as a skating rink, but aver, that it was not the only use to which they expect to devote it; that they propose to use it for fairs, festivals, exhibitions, lectures and other similar entertainments. It avers, that, before they received notice from complainants, that they objected to its use as a skating rink, they had made their contract for its erection. It denies, that the use of said building as a skating rink will interfere with the comfort of complainants. The answer specifically denies each allegation of the bill, which alleges, that the noise from skating or from the crowds or music will materially interfere with the comfort of the plaintiffs. They say in their answer, that skating-rinks are not nuisances per se ; that they are numerous all over the country, and in this State they are recognized and legalized by statute ; that they obtained a permit from the city-council of Charleston to erect it, aud, if it is a nuisance, it is the right and duty of the city-council to abate nuisances within said city. They say, that it will be built with a double floor with saw-dust between the floors, so as to deaden the sound and make it less than with the ordinary floor; that, if any inconvenience, annoyance or injury does result to the properties of the plaintiffs or to the enjoyment thereof by themselves and families by reason of the use of said building as a skating rink, it will only be such slight and incidental annoyance, inconvenience and injury, as result from the lawful and legitimate use of respondents’ said property, and will be damnum absque infaria. They further aver, that the principal objection, that complainants have, to the erection and use of said building as a skating rink is, that respondents are of that class of people commonly called colored people, and that colored people are to be admitted to the exercises in said building. They admit, that colored people are to be adniitted into the building, but deny, that that will make it a nuisance. They aver, that “It would be inequitable and unjust to continue and perpetuate the in
Many depositions were taken; and respondents moved to dissolve the injunction. On the 9th day of October, 1885,, the cause was heard on said motion to dissolve; and the court did dissolve the injunction and gave costs against the plaintiffs but in the decree “reserved the right to complainants to have the said injunction reinstated, whenever, if at any time, the use of said building as a skating rink or for any other purposes shall become a nuisance to said complainants or any of them, and the court directs this cause to be continued on the docket for that purpose.”
On the 24th day of November, 1885, the plaintiffs filed a supplemental bill, in which they alleged, that shortly after the decree dissolving the injunction was rendered, the said building was completed and used as a skating rink, and the same has been used as such nearly every day or night since except Sundays; that the noise and disturbance created by said skaters and the crowds, that assemble at said rink both day and night and especially at night, are a very serious annoyance and disturbance to the plaintiffs, Broun and Sentz, and their families; that the rest and sleep and the quiet enjoyment of the homes of said Sentz and Broun are much disturbed and interfered with by the running of said skating rink, by the noise of the skaters and by the yelling and shouting of the audience and by the crowds of i:>eople going to and from said rink, and by the music, which sometimes constitutes a part of the performance; that there has been sickness in the family of Sentz during the past four weeks, which has been greatly aggravated by the noise and disturbance created by the skaters and audience at the skating rink; that the said noise and disturbance would very seriously retard the progress of the recovery of a sick person living in the
Defendants demurred to this bill, first for want of equity, and secondly, because of misjoinder of plaintiffs, insisting that Snyder and Knight had no interest in the suit. They also answered the supplemental bill denying the allegations therein as to the disturbance by the use of the building as a skating rink. They admit, that they are so using it. They say, that plaintiff, Brown, has moved away from the Snyder house to a house beyond the reach of any noise from' the rink, and that he had rented the new residence, before he filed the amended bill. They say, that Penn can not complain, because he sometimes aids and abets the use of the building as a skating rink. Many depositions were taken on the issues in the supplemental bill.
On the 19th day of June, 1886, the cause was heard on supplemental bill, demurrer thereto, answer of defendants and general replication and depositions and papers heretofore filed and proceedings had in the cause. The court overruled the demurrer, and being of opinion, that none of the plaintiffs were entitled to the relief prayed for in the supplemental bill, refused to reinstate the injunction, and decreed that said amended and supplemental bill be dismissed at the costs of plaintiffs, and that the original bill be dismissed, and awarded execution for costs, as then decreed, and as decreed on the 9th of October, 1885.
The appellees insist, that both bills- should have been dismissed because of misjoinder of parties. They base this misjoinder oii the ground, that Snyder and Knight, trustee, had no interest in the suit and should not have been made parties to it; that only such persons- can maintain a bill in equity to restrain a nuisance, as can bring their actions at law for damages on account of such nuisance. To sustain this position they cite Demorest v. Hardman, 34 N. J. Eq. 469; Railroad v. Prudden, 20 N. J. Eq. 530; Henchman v. Railroad Co., 17 N. J. Eq. 75; Hudson v. Madison, 12. Sim. 416; Walker v. Powers, 104 U. S. 245.
The case in 104 U. S. seems to have no bearing on the subject. It was there held, that a bill is subject to objection for multifariousness, if one of the complainants has no standing-in court, or when they set up antagonistic causes of action, or when the relief, for which they respectively pray, in regard to a portion of the property sought to be reached involves totally distinct questions requiring different evidence and leading to different decrees. In that case the general purpose of the bill was to have certain sales and conveyances of real estate declared null and void.
In Hudson v. Madison, 12 Sim. 416 (35 Eng. Chy. 352,) it was decided, that, where a bill filed by five several occupiers of houses in a town to restrain the erection of asteam-engine, which would be a nuisance to each of them ; that each occupier had a distinct right- of suit, and that therefore they could not sue as co-plaintiffs.
In Demorest v. Hardman, 34 N. J. Eq. 460, it was held, that several persons may join in a suit to restrain a nuisance, which is common to all and affects eacli in- the same way; but, when several persons owning distinct parcels of land or occupying different dwellings and having no common interest seek to restrain a nuisance in consequence of the special injury to each particular property, each person must bring a separate suit and obtain relief, if at all, on his own special wrongs. To the same effect are the other two cases cited from New Jersey. But respectable authority can be found on the other side of this question and to my mind more reasonable and convenient, in practice.
In Robinson v. Baugh, 31 Mich. 290, nineteen separate property-owners filed a bill to enjoin a defendant from using his premises in such a manner as to be a nuisance and specially and greatly injurious to them in property, comfort, and health. His business was that of forging, which he conducted in low wooden buildings and on a large scale, using steam and a large amount of bituminous coal and working four steam-hammers, one of which weighed thirty-five hundred pounds. The smoke, soot and noise greatly annoyed the plaintiffs. It was obj ected, that the suit could not be maintained, because the plaintiffs were separate and distinct property-owners with distinct interests. The court, by Graves, O. J., said: “Upon the circumstances of this case we think the objection not maintainable. The rights asserted by complainants, and for which they ask protection, are alike, and the grievance stated in the bill and charged
In Peck v. Elder, 3 Sandf. Sup. Ct. R. 126, note, Chancellor Walworth said: “The objection, that different persons,, owning separate tenements, which are injuriously affected by a nuisance, can not join in a suit to restrain such nuisance, is untenable. * * * So far as the bill seeks merely to restrain by injunction a nuisance which is a common nuisance to each and every of the complainants, there is no good reason, why they should not all be permitted to join in one suit instead of multiplying cases by bringing several distinct suits. * * * And it is of no consequence, whether the complainants reside on their properly or not. It is sufficient, that the nuisance is calculated directly to diminish its value by preventing its being occupied by the complainants or by good tenants, who are able and willing to pay the rent, or to destroy the value of the property as building-lots.” In that case one or more of the plaintiffs did not occupy their property.
In Marcy v. Hay, 1 Barb. Ch’y 59, it was held, that there is no inflexible rule as to joinder of parties in a court of chancery. Yet as a general principle several complainants having distinct and independent claims to relief against a defendant can not join in a suit for the separate relief of each. Nor can a single complainant having distinct and independent claims to relief against two or more defendants severally join them in the same bill. But there are many exceptions to this rule; and the court exercises a sound discretion in determining, whether there is a misjoinder of parties under the particular circumstances of each case. Two or more per
“ The same thing occurred in the case of Sutton v. Montfort, 4 Sim. 559, which came before the same equity-judge five years previous, where two tenants of different buildings having no joint interest joined with the landlord of both in filing the bill to restrain the nuisance. But in the more recent case of Hudson v. Madison, 5 Lond. Jur. 1,104, which came before him in December, 1841, where five different owners of separate houses had joined in a bill to restrain a nuisance, which was a common injury to all their houses, he seems to have taken it for granted, that the objection of mis-joinder of complainants would be fatal at the hearing, and dissolved the injunction on that ground-alone, (12 Sim. 416). Even if that case may be considered as finally settling the question in England, which, I presume, it does not, as it does not appear to have received the sanction of the Eord Chancellor upon appeal or otherwise, I do not consider myself at liberty to follow that decision here, as the question was settled by this- court directly the other way more than twenty years since.” He there refers to Reid v. Gifford, Hopk. Ch’y.
The bill was not demurrable; neither was the supplemental bill. But, even if this were not true, and there was in fact a misjoinder of parties, it was not properly taken advantage of. The rule is well settled, that incases of misjoinder of parties as plaintiffs in equity the objection must be made by demurrer, if the defect is apparent on the face of the bill, or by plea and answer, if the defect does not so appear; and unless so made the objection will not avail at the hearing, if a decree can be rendered without prejudice to the rights of the parties. (Vaiden v. Stubblefield, 28 Gratt. 153; Armstrong v. Thurston, 11 Md. 148.) There was no demurrer to the
Was a proper case made by the pleadings and proof for the interposition of a court of equity? Says Mr. Wood in his excellent work on nuisances •: “It would be impossible to .give all the instances, in which courts of equity have interfered or refused to interfere in cases of nuisances. It is enough to say, that, when the right is clear, and the nuisance is established, a court of equity will always interfere, if the nuisance results from an unlawful act, is continuous in its nature or, if only temporary, if it is not adequately compen-sable in damages. * * * Injunctions have been granted to prevent the erection of slaughter-houses in the vicinity of dwellings, even where the neighborhood had in a measure been given up to trades of- a noxious character, — to prevent the continuance of the business of slaughtering cattle in the vicinity of dwellings, even when the slaughter-house was established, before any dwellings were erected in the vicinity,— to restrain the erection of glue-works, — of works for the preparation of blood as an ingredient for prussian blue, — of melting-houses, and fat boiling establishments, — for preparation of tripe, — for the manufacture of gas, — to prevent the use of cattle-yards, — -the burning of bricks near dwellings, — planing-mills emitting dense volumes of smoke,— potteries, — the use of mineral coal as fuel, — -the burning of lime kilns, — the maintenance of livery-stables near dwellings impairing their comfort by noxious stenches and drawing flies to the vicinity, — a turpentine distillery, — the carrying on of noisy trades near a dwelling at unreasonable hours or so as to impair its comfortable enjoyment or so as by agitating and varying sounds and motions to produce actual injury to property, — the performance of brass-bands in the vicinity of dwellings, collecting' crowds and impairing the comfortable enjoyment of property, — a regatta near a dwelling, collecting a crowd, — running railroad-cars near a church
In Bishop v. Banks, 33 Conn. 118, it was held, that the bleating of calves kept over night at a slaughter-house to be slaughtered in the morning was such a serious annoyance to a family dwelling near, as to be a nuisance, which must be abated. In delivering the opinion, Park, J., said: “It is difficult to conceive of any noise more destructive to the comfort and happiness of a family than the constant wailing of animals in distress in the immediate vicinity of their residence. Enjoyment under such circumstances would require nerves of brass and a heart of steel. * * * The defendant should remember the maxim sicutere tuo-ut alienum non Icecdas and act accordingly.”
In Ditman v. Repp, 50 Md. 517, the court decided, that noise alone, if of such a character as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibility, may create a nuisance and be the subject of an action at law or an injunction from a court of equity,, though such noise may result from the carrying on of a trade or business in a town or city.”
In Adams v. Michael, 38 Md., 123, it was held, that a court of equity will interfere by injunction to restrain an existing or threatened nuisance to a dwelling-house, if the injury be shown to be of such a character, as to diminish materially the value of the property as a dwelling and seriously interfere with the ordinary comfort and enjoyment of it, if it appear to he a case where substantial damages could be recovered at law.
In Catlin v. Valentine, 9 Paige 575, it was decided, that to constitute a nuisance it is not necessary, that the noxious trade or business should endanger the health of the neighborhood. It is sufficient, if il produces that, which is offen
In Rhodes v. Dunbar, 51 Pa. St. 274, it was held, that the courts have power to restrain noises, which disturb rest and prevent sleep.
In Ross v. Butler, 19 N. J. Eq. 294, it was held, that, when the prosecution of a business of itself lawful in the neighborhood of a dwelling-house renders the enjoyment of it materially uncomfortable by the smoke and cinders or noise or offensive odors produced by such business, although not in any degree injurious to health, the carrying on of such business there is a nuisance and will be restrained by injunction.
In Broder v. Saillard, 2 L. R. Ch’y Div. 692, it was held in a suit by the owner and occupier of a house against the occupier of an adjacent house complaining of noise from the defendant’s stable and damp from an artificial mound, on which it stood, that the plaintiff was entitled to an injunction to prevent the defendant from keeping horses in his stable so as to be a nuisance; and that the defendant was also liable for not preventing the damp from going through the plaintiff’s walls.
In Inchbold v. Robinson, 4 L. R. Ch’y App. Cas. 388, it appears, that a circus, which was performing near the dwelling, was enjoined on account of the noise. The performance in the evening lasted from about half past seven till hall' past ten. It was proved, that the noise of the music and shouting in the circus could be distinctly heard all over the plaintiff’s house and was so loud, that it could be heard above the conversation in the dining room, though the windows and shutters were closed.
In Crump v. Lambert, 3 L. R. Eq. Cas. 409, it was held that smoke unaccompanied with noise or with noxious odors and noises alone, and offensive odors alone, although not injurious to health, may severally constitute a nuisance. The material question in all cases is, whether the annoyance produced is such, as materially interferes with the ordinary comfort of human existence.
Was there a nuisance in this case ? It seems to me, there can be no doubt about it. 1 think, that the evidence before
There was an effort made by the answer to the original bill to show, that the injunction was procured, because the defendants were colored people, and some of the testimony tended in that direction. There is nothing in the record to show that a skating rink would be more obnoxious, if operated by colored people than if operated by white people. The colored people have the same right and no more to erect and operate a skating rink, that white people have. But every person, white or colored, has the right not to be disturbed in his house ; he has the right to rest and quiet and not to be materially disturbed in his rest and enjoyment of home by loud noises. If A. 0. Snyder, Sentz, Broun and Penn had
The decrees of the 9th of October, 1885, and January 19th, 1886, are respectively reversed with costs ; and the injunction originally granted is reinstated and made perpetual at the costs of the defendants below.
REVERSED.