36 Ala. 546 | Ala. | 1860
The jurisdiction of courts of equity, to interpose by injunction in cases of private nuisance, is of comparatively recent growth; and, though it is now well established, it must be admitted, that the control thus assumed over an individual, in the use or enjoy-, ment of his property, is one of the extraordinary powers of the eourfc, and should be cautiously and sparingly ex
The general rule upon this subject is thus stated by Lord Brougham, in Ripon v. Hobart, (3 M. & K. 169; S. C., 1 Cooper’s Sel. Cas. 333 :) “If the thing sought to he prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, without waiting for the result of a trial; and will, according to the circumstance;^ direct an issue, or allow an action, and, if need be; expe? dite the proceedings, — the injunction being in the meantime continued. But, where the thing sought to be restrained is not unavoidably, and in itself, noxious, but only something which may, according to .circumstances, prove so, the court will refuse.to interfere, until the matter has been tried at law, generally by an action, though, in particular eases, an issue may be directed for the satisfaction of the court, where an action could not be so • framed as to meet the question.”
The principle, that the court will not interfere in the first instance by injunction, where the matter complained of is not, ipso facto, a nuisance, but may or may not prove so, according to circumstances, was recognized in Ray v. Lynes, (10 Ala. 63,) and, as a general rule, is well established in the equity jurisprudence of the United States. Kirkman v. Handy, 11 Humph. 406; Mohawk Co. v. Utica Co., 6 Paige, 554, 563; Bell v. Ohio Co., 25 Penn. 161, 175, 182; Dana v. Valentine, 5 Metcalf, 8 ; Ingraham v. Dunnell, ib. 118; Harrison v. Brooks, 20 Geo. 543; Laughlin v. President, &c., 6 Indiana, 223; Gwin v. Melmoth, Freeman’s Ch. (Miss.) R. 505; Barnes v. Calhoun, 2 Ired. Eq. 199 ; Van Winkle v. Curtis, 2 Green’s Ch. 422; 2 Waterman’s Eden on Injunctions, note 1, 269, 273-4-5; Adams’ Eq. 211, note 1, 217-18.
It is true that the general rule, as thus stated, must be taken subject to the qualifications declared by Lord
A private stable,,near a church, does not belong to the class of erections which are unavoidably, and in themselves, ’nuisances. That it may become a nuisance, is no doubt true; but the question whether or not it will prove to be one, depends, in a great measure, upon its proximity to the church, the manner in which it may be built, the number of horses placed in it, and the degree of care with which it may be kept; and hence it is not susceptible of definite settlement, until the building is completed, and applied to the use for wdiich it is designed.' — Kirkman v. Handy, 11 Humph. 406; Dargan v. Waddell, 9 Ired. L. 244.
"Whenever it is legally ascertained that it has become a nuisance, a court of equity will protect, by injunction, any party injured thereby. But as, in the present case, it is yet uncertain, and remains to be ascertained from future events, whether or not the erection will become a nuisance, there is no ground for an injunction arresting the further progress of the building, or its appropriation to the use intended. Admitting that there is a strong probability that inconvenience and discomfort may result from the use of the stable; yet the injury apprehended is not of that “vast and overwhelming” character, which would justify a departure from the general rule above stated, which,