Ballentine v. Webb

• Decision Date: 24 December 1890
• Citation: 47 N.W. 485,84 Mich. 38
• Court: Michigan Supreme Court
• Parties: BALLENTINE et al. v. WEBR.

47 N.W. 485

84 Mich. 38

BALLENTINE et al. v. WEBR.

Supreme Court of Michigan

December 24, 1890

Appeal from circuit court, Wayne county, in chancery; GEORGE S HOSMER, Judge.

Parker & Burton, for complainants. Conely, Maybury & Lucking, for defendant.

CAHILL, J.

The complainants are the owners of, and occupy as residence property, lands in the northern part of the city of Detroit lying between Trumbull avenue and Twelfth street, and between Merrick avenue and Kirby street. The neighborhood is a new one, as a residence part of the city, the complainants having for the most part moved there within a year prior to the filing of their bill in 1887. In the spring of 1886, the defendant had erected a slaughter-house on the south-east corner of Twelfth and Kirby streets, the cost of which was something over $4,000. Before doing so, he testified that he had acquired permission from the common council. In the near neighborhood was King's cattle-yard and Wreford's slaughter house, both of which had been in operation some years. Defendant was engaged principally in slaughtering hogs. The hogs were received by rail, and were unloaded from a side track near the slaughter-house to the number of about 300 a week. They were usually kept in the yard at least overnight, and sometimes 24 hours, to cool off before killing. Sometimes car-loads of hogs intended for King's stock-yards, as well as for the defendant's, would stand upon the track for several hours at a time, and would make considerable noise by squealing. Complainants allege in their bill that the swine confined in defendant's yards produce a large amount of manure and filth, and give off an offensive, sickening, and unwholesome stench, and that at times it becomes so unendurable that the inhabitants, of whom complainants form a part, are compelled to leave their homes that the confined swine make a great disturbance and noise by squealing so loudly as to awaken persons from sleep, and so constantly as to disturb inhabitants at all times, both day and night. It is alleged that, in consequence of the business carried on by defendant, the land in the vicinity has become depreciated in value, and complainants charge that the stench arising from said swine and from the drying hair taken from the slaughtered hogs, and from the said slaughter-house, constitutes a nuisance, and that the noise and disturbance made by said swine in confinement constitutes a nuisance; that such nuisances are greatly injurious to the health, comfort, and property interests of the complainants; that the injury to the complainants' health and comfort cannot be measured by monetary value; that the injury to their property interests is upwards of $5,000; and that for such injury to their health, comfort, and property, they are without any adequate relief except in equity. The prayer of the bill is for preliminary and perpetual injunction to restrain defendant from further using or employing his property for a slaughter-house, wherein to slaughter swine, or any other animals, and from employing the same for the purposes of confining therein quantities of swine or other animals for the purpose of slaughtering them, and for using the same or any part of it as a drying-yard for drying hair or bristles taken from the slaughtered swine; also for general relief.

Defendant answered admitting that he owned and operated the slaughter-house at the place stated in the bill, and for purposes substantially as charged, but denied that the place was uncleanly, or gave out noisome or unwholesome smells, or that the same was a nuisance in any way. Says that the slaughter-house had been erected, and was carried on, after the newest and most approved methods, and was kept as clean as is possible for such a place to be kept; that it had been constructed expressly for the purpose for which he was using it, and that if he should be prevented from making such use of it the value of the property amounting to about $5,000 would be almost wholly destroyed; that when defendant bought and built there, there were very few buildings in the neighborhood; and that, as yet, the neighborhood was sparsely settled. The case was heard before Hon. GEORGE S. HOSMER, circuit judge, a large number of witnesses being examined on each side, and the testimony being very conflicting. Upon the part of the complainants the testimony tended to show that the people living in the vicinity of the defendant's slaughter-house were annoyed, especially during the summer months, by offensive smells coming from the direction of the defendant's place; that these smells were in some instances so offensive as to make the parties sick. It also appeared that people were kept awake at night by the squealing of hogs confined in defendant's yard. It does not clearly appear from the complainants' proof, however, whether the offensive smells of which they complain were such as were necessarily connected with a slaughter-house for the slaughtering of hogs maintained in a proper manner, or whether such smells were due to the improper conduct of the business, and in consequence of defendant's neglect to keep the place in as clean a condition as the same could be kept with proper care. There was evidence tending to show that defendant was in the habit of spreading the hair scraped from the slaughtered hogs upon the ground to dry before sending the same to market, and some of the witnesses thought that much of the unwholesome smell came from this hair. On the part of the defendant, the testimony tended to show that great care was used by defendant to keep the place clean and wholesome; that the manure and other offal was removed every day by wagons to a distance in the country; that much of the noise with which complainants found fault came from the squealing of hogs standing in cars on the track intended for King's stock-yards. A considerable number of witnesses called by the defense, who lived in the neighborhood where defendant's business was carried on, testified that they had never noticed any offensive smells, and were never disturbed by the squealing of hogs. The court below found as a fact that in the prosecution of the business conducted by the defendant he has, at various times, been guilty of maintaining a nuisance in the noxious and offensive odors from the confined swine, and from swine in the process of being slaughtered, and has also been guilty of maintaining a nuisance in the offensive odors from the drying hair and bristles taken from the slaughtered swine, and that at times, depending on the state of the weather or the direction of the wind, such nuisances have been unbearable. The decree, however, did not order the defendant to cease using the place as a slaughter-house altogether, but decreed that defendant refrain from using or employing the buildings and sheds erected on defendant's premises for the purpose of a slaughter-house wherein to slaughter hogs in such a way as to be offensive to, or become a nuisance to, the complainants; and that defendant desist and refrain from using or employing the said inclosure or buildings for the purpose of confining therein quantities of swine or other animals in such a way as to be offensive to, or to be a nuisance to, the complainants, or any of them; and that defendant desist and refrain from using said inclosure, or any part thereof, as a drying-yard in which to dry hair or bristles taken from the slaughtered swine. And the complainants were given leave to apply to the court for a further order enjoining or restraining defendant from using his premises in any wise for the purpose of slaughtering or confining swine, if it...