Aufderheide v. Polar Wave Ice & Fuel Co.

• Citation: 4 S.W.2d 776
• Decision Date: 17 March 1928
• Docket Number: No. 25825.,25825.
• Court: Missouri Supreme Court
• Parties: FRED C. AUFDERHEIDE ET AL. v. POLAR WAVE ICE & FUEL COMPANY, Appellant.

4 S.W.2d 776

FRED C. AUFDERHEIDE ET AL. v. POLAR WAVE ICE & FUEL COMPANY, Appellant.

No. 25825.

Supreme Court of Missouri. Court en Banc.

March 17, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

REVERSED.

Foristel, Mudd, Hezel & Habenicht, James T. Blair and Frank X. Hiemenz for appellant.

(1) The burden was upon respondent to show that the new plant would, when constructed, constitute a nuisance. Robison v. Dale, 62 Tex. Civ. App. 279. The courts do not assume that plants will be improperly operated and do not consider that matter on a bill to enjoin an anticipated nuisance. State ex rel. v. Cozad, 113 Kan. 202; Ayars v. Hospital, 274 Pa. St. 311; Dallas L. & L. Co. v. Garrett, 276 S.W. 474; Smith v. Oil Co., 130 Atl. 184; Hanes v. Cadillac Co., 97 S.E. 162. (2) An injunction against an anticipated nuisance will not be granted "except where the right to it is clearly and conclusively made out." The right to relief "must be clear and free from all substantial doubt." McCutchen v. Blanton, 59 Miss. 122; Durham v. Mills, 141 N.C. 628; Holzer v. Eppling, 17 Ohio App. 415; Flood v. Consumers' Co., 105 Ill. App. 565; 2 Wood on Nuisances (3 Ed.) secs. 797, 796; Joyce on Nuisances, sec. 88; Pope Bros. & Co. v. Gas Co., 52 W. Va. 256. (a) The rule is that a court of equity will not restrain, by injunction, any lawful business, or the erection of any building or works for such business, because it is supposed or alleged that such business will be a nuisance to a dwelling house near it; it must be clear that the business will be a nuisance, and that it cannot be carried on so as not to be such. Windfall Mfg. Co. v. Patterson, 148 Ind. 418; Duncan v. Hayes & Greenwood, 22 N.J. Eq. 27; McCutcheon v. Blanton, 59 Miss. 122; Wasilewski v. Biedrzycki, 192 N.W. 991; City of Richmond v. House, 177 Ky. 815; Wergen v. Voss, 192 N.W. 51, 26 A.L.R. 933, 937, and note; Holzer v. Eppling, 17 Oh. App. 415; Rouse v. Martin, 75 Ala. 510; Fancher v. Grass, 60 Iowa, 505; Holke v. Herman, 87 Mo. App. 142; 1 Wood on Nuisances (3 Ed.) sec. 100; 1 High on Injunctions (4 Ed.) sec. 774; Reichert v. Geers, 98 Ind. 73; Wolcott v. Melick, 11 N.J. Eq. 204. (b) If complainants' right is doubtful, or the thing which it is sought to restrain is not a nuisance per se and will not necessarily become a nuisance, but may or may not become such, depending on the use, manner of operation or other circumstances, equity will not interfere. Baltimore City v. Sackett, 135 Md. 63; Wolfschlager v. Applebaum, 213 Mich. 184; Goose Creek Ice Co. v. Wood, 223 S.W. 327; Haynes v. Hedrick, 223 S.W. 551; Von Hatzfeld v. Neece, 223 S.W. 1035; Cooper v. Whissen, 95 Ark. 548; Rippey v. Rusk, 199 N.W. 524; Dunn v. Austin, 77 Tex. 143; Pfingst v. Senn, 94 Ky. 560. (C) A legitimate business ought not to be enjoined unless it appears that it will be of such character as necessarily to produce the results apprehended. It can seldom be said that a particular business, lawful in its nature, will, no matter how conducted, constitute a nuisance. Pest houses, insane asylums and undertaking establishments in residence districts may be so. These last indicate the class of exceptions to the rule. That class does not include ice plants. Wolfschlager v. Applebaum, 213 Mich. 184; Cooper v. Whissen, 95 Ark. 548; Joyce on Injunctions, sec. 103. (d) The court will interfere only when it is "satisfied that the threatened nuisance is inevitable" and "will proceed with the utmost caution in restraining such threatened and possible injuries." Windfall Mfg. Co. v. Patterson, 148 Ind. 414; Health Dept. v. Purdon, 99 N.Y. 237; Dorsey v. Allen, 85 N.C. 358; Rhodes v. Dunbar, 57 Pa. St. 274; Thornton v. Rose, 118 Ill. 350; Barnes v. Calhoun, 2 Iredell (N.C.) 199; Harrison v. Brooks, 20 Ga. 537. (3) Testimony that other kinds of ice factories, "constructed in a different way, when so operated, caused much annoyance, did not tend to show that the" ice factory "appellant proposed to build, when operated, would cause them." Robinson v. Dale, 62 Tex. Civ. App. 279. (4) A modern, electrically-driven ice plant of the closed type is neither a nuisance per se, a nuisance in fact, nor a potential nuisance. Lindbloom v. Ice Co., 217 Ill. App. 306; Pfingst v. Senn, 94 Ky. 556; Goose Creek Ice Co. v. Wood, 223 S.W. 324; Dunn v. City of Austin, 77 Tex. 139; Knaub v. Meyer, 141 N.Y. Supp. 819; Le Blanc v. Ice Mfg. Co., 121 La. 249; Parsons v. Uvalde E.L. Co., 163 S.W. 1; Chambers v. Cramer, 49 W. Va. 395; Flood v. Consumers Co., 105 Ill. App. 559; Albany Church v. Welborn, 112 Ky. 507; Dalton v. Ry., 144 Ind. 121; Marrs v. Fiddler, 69 S.W. 953; Cooper v. Whissen, 95 Ark. 548; Pope Bros. v. Gas Co., 52 W. Va. 252. (5) In case of noises not interfering with ordinary conversation no injunction will lie. Butterfield v. Klaber, 52 How. Pr. (N.Y.) 255; Knaub v. Meyer, 141 N.Y. Supp. 819; Peck v. L.H. & P. Co., 132 App. Div. 84. In addition to the lack of properly-convincing proof that noises at the new plant must inevitably result, and the fact that the only evidence as to noises is conflicting, there was no proper proof of even a likelihood of noises of such character as to be enjoinable and no evidence of noises which justify enjoining the plant. Lohmuller v. Kirk & Son Co., 133 Md. 78; McCaffery's Appeal, 105 Pa. St. 253; Salvin v. Coal Co., L.R. 9 Ch. (Eng.) 705; Cremidas v. Fenton, 223 Mass. 249; Dorsey v. Allen, 85 N.C. 358; Powell v. Furniture Co., 34 W. Va. 805; Butterfield v. Klaber, 52 How. Pr. 255; Peck v. L.H. & P. Co., 132 App. Div. 82; McCann v. Strang, 97 Wis. 551; Heath v. Mayor of Brighton, 98 L.T. (N.S.) 718; Gilbert v. Showerman, 23 Mich. 448; 2 Wood on Nuisances (3 Ed.) sec. 801. (6) When injury from fumes is only accidental and occasional, injunction will not lie. Joyce on Nuisances, sec. 146. (7) Depreciation of value alone is not sufficient to justify injunctive relief. Damages would be adequate. 2 Story Eq. Jur. (14 Ed.) sec. 1253; Dean v. Undertaking Co., 55 Cal. App. 551; Van De Vere v. Kansas City, 107 Mo. 91; Rouse & Smith v. Martin & Flowers, 75 Ala. 515; Robinson v. Dale, 62 Tex. Civ. App. 280; Gibson v. Donk, 7 Mo. App. 37, 7 A.L.R. 762; Brown v. Easterday, 194 N.W. 800; Spencer Chapel v. Brogan, 104 Okla. 125; McGill v. Pintsch Co., 140 Iowa, 435. Mere unsightliness of buildings is not ground for injunction. Worm v. Wood, 223 S.W. 1016; Shamberger v. Scheurrer, 198 S.W. 1071; Von Hatzfeld v. Neece, 223 S.W. 1035; Dallas L. & L. Co. v. Garrett, 276 S.W. 474; Van De Vere v. Kansas City, 107 Mo. 91; Radney v. Ashland, 75 So. 25; Flood v. Consumers Co., 105 Ill. App. 562. (8) Swearing and obscene language may be enjoined. Barnard v. Finkbeiner, 162 App. Div. 320; Thoenebe v. Mosby, 257 Pa. St. 5. But the interchange of conversation among respectable persons "is a matter for the police to regulate rather than for a court to dispose of by injunction." Thoenebe v. Mosby, 257 Pa. St. 5. The idle and disorderly crowd of "hangers on" may easily and summarily be disposed of on the complaint of municipal authorities. Rhoades v. Dunbar, 57 Pa. St. 274. (9) The power to zone cities, where recognized, is an authority in excess of the power to suppress nuisances. Julian v. Oil Co., 112 Kan. 673; Hughes v. McVay, 113 Wash. 340; Wasilewski v. Biedrzycki, 192 N.W. 991; Owid v. Moushaty, 211 N.Y. Supp. 478.

Glendy B. Arnold for respondents.

(1) As the record fails to disclose the pecuniary amount "in dispute," this court is without jurisdiction of this appeal. In actions for injunctive relief alone "the amount involved must be determined by the value in money of the relief to the plaintiff, or of loss to the defendant, should the relief be granted, or vice versa, should the relief be denied." Gast Banknote Co. v. Fennimore Assn., 147 Mo. 557; Kitchell v. Railway Co., 146 Mo. 455; Gary Realty Co. v. Kelly, 284 Mo. 418. (2) This loss to plaintiff or defendant must be "ascertained by well-known rules regulating the measure of damages," and "with reasonable certainty from accounts, documents or unquestionable oral evidence (as satisfactory as either)." Vanderberg v. Gas Company, 199 Mo. 459. (3) Where the record is silent, in an injunction suit, as to the loss the defendant has sustained, or will sustain, by the decree, the Supreme Court is without jurisdiction. State ex rel. v. Mid-State Serum Co., 264 S.W. 878; Cambest v. Hydroelectric Co., 292 Mo. 570; Handlan v. Stifel, 219 S.W. 616. (4) The jurisdiction of this court must affirmatively appear upon the record, and where it depends upon the amount in dispute the court will not "enter upon a field of calculation, with nothing tangible to serve as a basis of computation." Cambest v. Hydroelectric Co., 292 Mo. 575; State ex rel. v. Mid-State Serum Co., 264 S.W. 878. (5) There is no evidence as to the value of either the property of appellant or respondents, but even if the court could take judicial notice that it was in excess of $7500 that would not give the court jurisdiction. Berry Foundry Co. v. Moulders Union, 251 Mo. 448; Cambest v. Hydroelectric Co., 292 Mo. 575. (6) It cannot be assumed that because appellant's ice plant will be closed by the affirmance of the decree that its loss will exceed $7500. (a) There is no evidence that the plant can be operated at a profit. (b) There is no evidence to show that the property may not be sold at a profit to appellant. (c) There is no evidence that appellant may not, without loss on the present investment, convert the property to some other lawful and just as profitable use. (d) The closing of this plant does not mean the cessation of business by appellant. This plant is only one of a very large number of similar plants of appellant. (7) While plaintiff's petition avers that if said plant is erected and operated the plaintiffs would be deprived of their property without due process of law, in violation of specific provisions of the Federal and State...