Albany Christian Church v. Wilborn

• Decision Date: 22 January 1902
• Citation: 112 Ky. 507,66 S.W. 285
• Parties: ALBANY CHRISTIAN CHURCH et al. v. WILBORN. [1]
• Court: Kentucky Court of Appeals

66 S.W. 285

112 Ky. 507

ALBANY CHRISTIAN CHURCH et al. v. WILBORN. ^[1]

Court of Appeals of Kentucky.

January 22, 1902

Appeal from circuit court, Clinton county.

"To be officially reported."

Action by the Albany Christian Church and another against E. R Wilborn for an injunction. Judgment for defendant, and plaintiffs appeal. Affirmed.

L. C Winfrey, J. N. Sharp, and J. A. Brents, for appellants.

E Bertram, for appellee.

HOBSON J.

Appellee Wilborn, is the owner of a lot in the town of Albany adjoining on the north the lot on which the Christian Church stands. He proposed to build on his lot, 27 feet from the church, a private stable, 45 feet long, 32 feet wide, and 14 feet high to the plates. Appellant Perkins owns a lot on the south side of the church, on which is a stable 41 feet from the church; and between it and the church is his privy. Perkins also owns residences on the opposite side of the street. The church and Perkins brought this suit to enjoin appellee from erecting his stable, on the ground that the use of the stable would create an offensive odor, which would impair the use of the church property for purposes of worship; that in warm weather it would cause an accumulation of flies, which would disturb the congregation; that it would increase the hazard from fire to the church building, which was a wooden structure; that the stable would front on the street, and would cause an obstruction of the sidewalk, from the placing of wagon bodies, vehicles, wheels, etc., in front of it; and that the noise from the stock, and the feeding of them, would disturb the congregation; and that these things would greatly impair the value of Perkins' property on the opposite side of the street. The defendant filed an answer in which he controverted the allegations of the petition, and, in addition, alleged affirmatively that he proposed building the stable for his private use; that he kept only one milch cow and his team, which would not be in the stable more than one-third of the time; that he was stripping all of the cracks, making it almost air-tight and with solid doors; putting up separate stalls for each animal, so that no noise could be made by the stock; that he would put in a plank floor, and keep the stable clean, and the sidewalk free of obstruction; that there would be no lights kept or used in the stable, and that it was his purpose to keep it so that there would be no noise, odors, or disturbance from flies. The affirmative allegations of the answer were not controverted. Proof was taken on both sides, and on final hearing the learned circuit judge dismissed the petition.

The proof shows that appellee is a teamster by trade; that he runs several wagons, in which he hauls for others, keeping from 4 to 10 horses and mules. He had had a smaller stable on this lot for some years, which he tore down when he began the erection of the one in contest.

In 1 High, Inj. § 742, the rule is thus stated: "When the injury complained of is not per se a nuisance, but may or may not become so according to circumstances, and when it is uncertain, indefinite, or contingent, or productive of only...