Caskey v. Edwards

Citation107 S.W. 37,128 Mo.App. 237
PartiesANNA D. B. CASKEY et vir, Respondents, v. SAMUEL E. EDWARDS, Superintendent, etc., and MARY E. VEACH, Appellants
Decision Date06 January 1908
CourtCourt of Appeals of Kansas

Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

Decree affirmed.

C. W Chase & Louis H. Hatfield for appellant.

(1) A livery stable is not a nuisance per se. St. Louis v Russell, 116 Mo. 248. (2) That plaintiffs have an adequate remedy at law if a nuisance should at any time be created in the conducting and carrying on of a stable. City Charter, sec. 3, art. III, page 22; Real Estate Co. v St. Louis, 169 Mo. 227. (3) Before equity will grant injunctive relief it must appear that the injury or wrong is real or imminent--if it has not already begun. Mere apprehension, fear, belief, prospect, possibility, or contingency is not sufficient. Kerr on Injunctions (1 Ed.) star pp, 198, 339; Bispham on Equity (5 Ed.), sec. 440; 2 Beach on Injunction, sec. 1301; Brookline v. Mackintosh, 133 Mass. 215; New York Aqueduct Board v. Passaic, 46 N.J.Eq. 552; Hutchison v. Delano, 46 Kan. 346; 1 Beach on Injunctions, secs. 17, 1301; 1 High on Injunctions (3 Ed.), sec. 886; Story, Equity Jur. (13 Ed.), sec. 924, p. 226. (4) No grounds for equitable relief stated. (5) No equity in bill. St. Louis v. Dorr, 136 Mo. 370; Shiras v. Olinger, 50 Iowa 571; Flint v. Russell, 5 Dillon (U.S.) 151. (6) No special damages over others in community. Warren v. Cavanaugh, 33 Mo.App. 108; McClosky v. Kreeling, 75 Cal. 511; Baker v. McDaniel, 178 Mo. 477.

Moore, Handy & Kimbrell for respondents.

(1) The defendant, Edwards, failed to appeal from the judgment of the court against him, and it is now a finality. (2) The evidence was ample to sustain the judgment against the demurrer of defendant Veach. (3) The answer of defendant Veach shows no ground for equitable relief. (4) The defendant, Veach, pleads section 200 of the building ordinances of Kansas City, and is bound by it. Knoop v. Kelsey, 102 Mo. 291-8; Lenox v. Harrison, 88 Mo. 491; Dalton v. Poplar Bluff, 173 Mo. 39; Lumber Co. v. Nickey, 101 Mo.App. 20; Johnson v. Railway, 104 Mo.App. 588. (5) Equity will restrain municipal officers when assuming authority in excess of their powers. High on Injunctions (4 Ed.), sec. 1247; Hill v. St. Louis, 159 Mo. 159; Knapp v. Kansas City, 48 Mo.App. 485; Coal Co. v. St. Louis, 130 Mo. 327; Schlitz v. Superior City, 117 Wis. 267; Blanc v. Murray, La. 162-166.

OPINION

ELLISON, J.

--This is a proceeding in equity to restrain the granting of a permit to build a livery stable. The proceeding was begun against the superintendent of buildings for Kansas City. Afterwards the defendant Veatch, who applied to the superintendent for permission to build the stable, came into court, was made a party defendant and filed her answer. The finding and decree of the trial court were for the plaintiffs, and defendant, the superintendent, did not appeal, but defendant Veatch brought the case here.

It appears that there is an ordinance for Kansas City prohibiting the location, erection or construction of a livery stable within two hundred feet of a residence and also an ordinance directing that no permit shall be issued for the building of any such stable so located. It also appears that defendant Veatch, before the passage of the ordinance and for a long time, has had a livery stable on a lot of hers which was within two hundred feet of the residences of plaintiffs. But the matter of which plaintiffs complain is that she now purposes building a new structure, greatly enlarged so that it would be of more than twice the size and cover more than twice the area of the original. Defendant claims that having the right to maintain the original, she has a right to erect and construct the one proposed, and she bases this claim on the right to repair.

While a structure existing within certain limits when the ordinance prescribing the limits is passed, such as frame buildings within fire limits and livery stables within prescribed limits, may be repaired after the ordinance is passed, yet it must strike any one that substantially a new building cannot be erected under the pretense of repair. An ordinance of the nature we are considering cannot be nullified by subterfuge or evasion any more than any other law. The structure now in existence is comparatively of small consequence compared to that which is proposed. It now is back from the street and it is proposed to dig new foundations and basements upon which will be constructed, according to detailed plans and specifications of an architect, a building of large proportions and one which will house more than double the number of animals and store more than double the number of vehicles. We have no hesitation in declaring the purpose not to be repair but to be a new structure within the meaning of the ordinance. As justifying this conclusion we will state that while the present structure is thirty-four feet wide and ninety feet long, the proposed structure is to be made, under the guise of repair, sixty feet wide by one hundred and thirty-four feet long.

The chief question argued is whether an injunction can be had as a remedy for the evil of which complaint is made. Livery stables are said not to be nuisances per se. St. Louis v. Russell, 116 Mo. 248, 22 S.W. 470. And defendant contends that only nuisances per se can be prevented by injunctive process, but they are, as is shown by that case, such character of undesirable and hurtful institutions as may be kept at such distance from residences as to greatly lessen, if not destroy, their offensiveness. Defendant in concession to such well recognized law, says that may be true, but that such law cannot be enforced by injunction and cites authority to the effect that equity cannot be turned into a criminal department and the chancellor made to serve in the duties of the judge of the criminal court. That is a general statement of sound law. In Rice v. Jeff. 50 Mo.App. 464, in an opinion by GILL, J., and on rehearing, by SMITH, P. J., that principle of law was stated in positive terms. That was a case where it was sought to restrain the erection of a frame building within the fire limits as established by ordinance. The party complained of had been arrested and tried and found not guilty. The case seems to have been an attempt simply to enforce a city ordinance by the civil process of injunction.

But that and other like cases did not involve a private right for the enforcement of which there was no adequate remedy at law. In law one citizen is no more interested in seeing criminal statutes enforced than another. Stated differently, all citizens are alike interested in the enforcement of law. But where an unlawful act is of special and particular irreparable hurt to an individual and he has no other adequate remedy, he may have injunction to prevent it. [Bank v. Sarlls, 129 Ind. 201, 28 N.E. 434.] In this case the act of erecting the proposed stable is not only unlawful but it will work irreparable injury to these plaintiffs. It is alleged and shown that the proposed structure would greatly and specially injure the value of the property of the plaintiffs' and that unhealthy odors and noxious vapors would inevitably arise and specially destroy the comfort and health of their homes. It was shown that the small and original structure now kept by defendant is offensive and hurtful to the comfort of the neighboring inhabitants, and no less annoyance would result from the new one.

Speaking in general terms, it is said that nuisances per se may be enjoined in civil process. But if the harmful act...

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