117 Mo. App. 636 | Mo. Ct. App. | 1906
Lead Opinion
An injunction was granted against the appellant company perpetually restraining it from operating an asphalt plant located on a switch of the Wabash Railroad about 300 feet east of Taylor avenue in St. Louis and 1200 feet south of respondent’s home. The decree further restrained appellant, or any one for it, from creating offensive gases and fumes which would he carried to respondent’s premises. Respondent for several years past has owned a comfortable home on the north side of Forest Park Boulevard in the city of St. Louis, a short distance west of Taylor. Appellant is a corporation engaged in the manufacture of asphalt for street paving. The company has its plant on a switch connected with the Wabash railroad tracks in a southerly direction from respondent’s residence. The petition charged that the manufacture of asphalt at appellant’s factory caused noxious gases and fumes to be generated in great volumes and disseminated through the surrounding atmosphere, either necessarily or through the operation of said plant in a negligent manner; that volumes of these noxious gases were carried to respondent’s residence, to the grievous discomfort of his family, who were nauseated by them, disturbed in their sleep, forced to keep the windows of their house closed in order to shut out the stench, and that the nuisance was so great that, unless restrained, respondent and his family would be conrpelled to abandon their home. The petition further
Appellant filed an answer admitting its incorporation and that since the early part of July, 1903, it had. been engaged in the preparation and manufacture of asphalt at its plant located at the spot alleged in the petition, on railroad cars, and a side track built on the right of way of the Wabash Railroad Company, and leased to appellant. It is denied that in the preparation of asphalt at the plant, deleterious gases and fumes had been given off so as to be carried to respondent’s premises, or in such manner as to be offensive or to constitute a nuisance. In the second paragraph of the answer an ordinance of the city of St. Louis was pleaded and stated to be in force at the time of the creation of the alleged nuisance. One section of the ordinance provides, in effect, that no person or company shall conduct certain occupations, such as brick kilns, soap factories, slaughter houses, garbage works, tanneries, and others named, in the city of St. Louis, without first obtaining permission from the Municipal Assembly, and that any one doing so shall be guilty of a misdemeanor. Asphalt works are not named in that section of the ordinance. Another section provides that it shall not be lawful to erect any building for the purpose of manufacturing an article which is injurious to the public health, or which emits an offensive odor to the extent of creating a nuisance, without first having obtained permission from the Municipal Assembly. After pleading that ordinance, or several sections of it, the answer further stated that the only purpose for which the asphalt plant was operated at its
The testimony proved that appellant had an apparatus mounted on some cars on a spur or switch of the Wabash Railroad in the city of St. Louis at the point mentioned in the petition. This plant was used in preparing asphalt for the purpose of executing contracts between appellant and the city for street improvements under certain contracts and ordinances. The evidence for respondent showed the fumes emitted in the operation of the plant were disagreeable to him and his family and could be distinctly perceived in their home; that they disturbed the comfort and sleep of the inmates and of the neighbors along Forest Park Boulevard. It was
We hold that the court committed no error in striking out the portion of appellant’s answer Avhich undertook to show, constructively, that it Avas licensed by the city to keep its plant at the spot Avhere it was a nuisance to respondent and his family. It is self-evident that the averments of the answer showed no license or permis
Rehearing
OPINION ON MOTION FOR REHEARING.
On the motion for rehearing it is .suggested for the first time, that the decree in this case is too broad as it prohibits the appellant company from ' operating its asphalt plant even in such a manner as to throw off no offensive smoke or fumes so as to constitute a nuisance to respondent and his family. The complaint in the petition is that the operation of the plant renders respondent’s home uncomfortable for himself and family, and is a nuisance on account of fumes discharged from the factory, either necessarily or as a regular incident to the manufacture of asphalt paving. Now the evidence for appellant was directed toward showing that these fumes were unavoidable and undoubtedly that was one of the points of defense relied on in the appellants brief. Hence, it is on a weak ground that appellant now complains of the decree for prohibiting it from running the factory where it stands at present, even though it can be run so as to cause no nuisance. The decree is not. to be so regarded. No one would object to the factory if its mischiefs were obviated either by moving it from its present location or in any other effective way. The intention of the decree is to protect respondent from the noxious gases, smoke and fumes which the factory emits. The motion for rehearing is overruled.