Adams v. Hamilton Carhartt Overall Co.

• Citation: 293 Ky. 443
• Parties: Adams v. Hamilton Carhartt Overall Co. et al.
• Decision Date: 02 March 1943
• Court: United States State Supreme Court (Kentucky)

293 Ky. 443

Adams v. Hamilton Carhartt Overall Co. et al.

Court of Appeals of Kentucky.

March 2, 1943.

1. Nuisance. — A "nuisance" is anything which annoys or disturbs the free use of one's property or which renders its ordinary use or physical occupation uncomfortable.

2. Nuisance. — The barking of a few dogs to such an extent as to make the ordinary occupation of one's property physically uncomfortable constitutes a "nuisance."

3. Nuisance. — Evidence supported finding that three dogs kept on defendant's premises barked during the night and in early morning hours to such an extent as to create a "nuisance" justifying injunctive relief.

Appeal from Estill Circuit Court.

Robert R. Friend and Ben H. Scott for appellant.

Shumate & Shumate and John W. Walker for appellees.

Before Charles L. Seale, Judge.

OPINION OF THE COURT BY JUDGE CAMMACK.

Affirming.

The Hamilton Carhartt Overall Company operates a plant in Irvine, Kentucky, and owns a residence near the outskirts of that small city which is occupied by Hamilton Carhartt, Jr., and his family. Mr. Carhartt is the general manager and vice president of the plant, and his son, Jack, also works there. Dewey Adams and his wife reside in a dwelling which they erected on property adjoining the rear of the property where the Carhartts reside. The Adamses keep three bird dogs on their premises. According to the testimony of the Carhartts, these dogs bark a great deal. They say the dogs bark daily from around five o'clock to seven-thirty in the morning, for about at hour at noon, for about two hours late in the afternoon, and frequently during the night. Mr. Carhartt said that he had made several unsuccessful attempts to get Mr. Adams to do something about the dogs prior to the time he instituted this proceeding wherein he sought the following relief:

"Wherefore, the plaintiffs pray for an injunction compelling the defendant to remove said pen and said dogs; that the defendant be perpetually enjoined from maintaining said barking dogs on his premises and in close proximity to the property of the plaintiffs, to the end that the barking of said dogs will not annoy the plaintiffs; for judgment for $100.00; for costs and all proper relief."

The trial resulted in a judgment denying damages, but under which Mr. Adams was "* * * permanently enjoined from maintaining upon his premises at night and during the early morning hours, being his place of residence near Irvine, Kentucky, when barking, the three bird dogs mentioned in the evidence, namely: an Irish Setter, a Pointer and an English Setter, and is directed and enjoined to remove said dogs from said premises. * * *" This appeal seeks a reversal of that judgment.

We would have less difficulty in disposing of this case were there not evidence of friction between the Adams and Carhartt families over a period of two or three years. Mrs. Adams was formerly employed in the office of the Overall Company, and seems to have resigned her position after the younger Carhartt had made some remarks to her, presumably about the dogs. Prior to the complaints about the dogs, the Carhartts had complained of chickens and hogs kept by the Adamses, and also about a sewer. There is also an indication that a dog owned by the Carhartts had caused the Adamses some trouble. The Carhartts sought to show also that Mr. Adams had threatened to open a dog kennel on his premises. Mr. Carhartt failed utterly to support his statement that he thought that the dogs "were purposely agitated." Furthermore, his statements to the effect that the dogs were kept in a pen some 12 by 15 feet in size, when in fact they were kept in pens approximately 30 by 50 feet; and that the back of his house was about 100 feet from the pen where the dogs were confined, while the residence of a Mr. Marlow, which was shown to be nearer the place where the dogs were kept than the Carhartt home, was 250 feet therefrom, are little short of absurd. But, aside from all this, there is the positive testimony of the Carhartts that the dogs bark every day and to such an extent as to disturb their rest and to infringe upon the enjoyment of their home. While several other persons in the neighborhood testified about the barking of the dogs, none of them said that they were disturbed thereby, nor did they refer to the barking to any such extent as testified to by the...