Atterbury v. West

• Decision Date: 15 November 1909
• Citation: 122 S.W. 1106,139 Mo. App. 180
• Parties: ATTERBURY et al. v. WEST et al.
• Court: Missouri Court of Appeals

122 S.W. 1106

139 Mo. App. 180

ATTERBURY et al. v. WEST et al.

Kansas City Court of Appeals. Missouri.

November 15, 1909.

1. MUNICIPAL CORPORATIONS (§ 697) — BAND STAND IN STREET AS "CONTINUING NUISANCE" — RELIEF BY INJUNCTION.

A band stand in the street is a "continuing nuisance," where, so long as it remains and is used for the purpose of its construction, it will interfere with merchants in their business, and hence injunction will lie against it after its completion.

2. NUISANCE (§ 72) — PUBLIC NUISANCES — INJUNCTION BY INDIVIDUALS.

The law is that injunction by individuals will not lie to prevent a nuisance, where the injury complained of is common to the public at large; but it does not apply when the injury to plaintiffs is special, and they have suffered, and will suffer, damage over and above the injury to the community at large.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by H. C. Atterbury and others against W. D. West and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

H. J. West and Jones & Conkling, for appellants. Benecke & Benecke and Lozier, Morris & Atwood, for respondents.

BROADDUS, P. J.

This is an action by certain property owners to restrain the alleged unlawful obstruction of a public street in the incorporated town of Mendon, Mo., and for a judgment for its removal. Plaintiffs are joint owners of four lots at the intersection of Main and Third streets in said town, upon which there is a building occupied by them as an implement, vehicle, and harness store, and also for general merchandise purposes. This building fronts on Main street, which is one of the principal thoroughfares of the town, and about 76 feet in width between the sidewalks. Plaintiffs' evidence tended to show: That the entire space was used by the public; that it was especially needed by plaintiffs as a means of free access by their patrons to their place of business; that the crowds of people who would be attracted to hear the music of the band would obstruct free communication, of persons who might desire to buy, with plaintiffs; that defendants Engleman, Hubbard, Stewart, and Lowe constituted the board of aldermen of the town; that defendant West was the mayor; that defendant Backus was the leader of a brass band; that said defendants as mayor and board of aldermen authorized the erection of and participated with defendant Backus in constructing, and causing to be constructed, upon said street in front of plaintiffs' place of business, a wooden structure about 13 feet square and 13 feet high, to be used as a stand for a brass band; that the erection of the structure was an obstruction to the street and interfered with free access to plaintiffs' place of business by their patrons; and that they will suffer in consequence of the erection and use of said structure, injury over and above that shared by the general public. In addition, it appeared that plaintiffs were the owners of the fee to the center of said street, subject to the public use, and that the structure was situated on that part of which they were such owners. It appeared from the evidence that the structure had been completed before the trial, wherefore plaintiffs asked and were granted permission to amend their petition to conform to the evidence and to include a prayer for an abatement of the nuisance. The amendment was made as proposed. The court found for the plaintiffs, and decreed that the said mayor and aldermen remove the obstruction within 30 days, and the defendant Backus was enjoined from using it for musical practice or entertainments as located. The defendants appealed.

In the first place, defendants complain that the amendment...