Barrett v. Vreeland

• Decision Date: 15 February 1916
• Citation: 168 Ky. 471,182 S.W. 605
• Parties: BARRETT ET AL. v. VREELAND ET AL.
• Court: Kentucky Court of Appeals

182 S.W. 605

168 Ky. 471

BARRETT ET AL. v. VREELAND ET AL.

Court of Appeals of Kentucky.

February 15, 1916

Appeal from Circuit Court, Franklin County.

Suit by Graham Vreeland and others against Guy Barrett and another. From so much of the judgment as granted relief to plaintiffs defendants appeal, and from so much as refused requested relief, plaintiffs appeal. Affirmed.

T. L Edelen and J. H. Hazelrigg, both of Frankfort, for appellants.

Frank Chinn and Brown & Nuckols, all of Frankfort, for appellees.

THOMAS J.

The appellees (eight in number) are each residents of the city of Frankfort, being the owners, respectively, of the houses in which they each reside with their families, and their property is located, some on Wapping street, some on Watson Court, and that of others on Wilkinson street in said city. The residences of the appellees Christine B. South and Frank Chinn have no intervening residences or buildings between them and the Kentucky river, which runs immediately west of their lots. The residences of the other appellees are farther away from the river and, for the most part, to the east of it, but, as is claimed in the petition, their residences are located sufficiently near to the property of appellants as to be affected by its operation, as is complained of in this suit. Immediately west of this property and across the Kentucky river the appellants maintain, and have maintained a rock quarry, which they have operated more or less constantly since the year 1906, they having acquired the land upon which the quarry is located in the year 1900. Claiming that for several years past, the appellants had operated this quarry in such a way as to invade the peaceful, quiet, and comfortable enjoyment of the right of appellees to occupy their property as a residence by each of them, they, on December 20, 1913, filed their joint petition in equity in the Franklin circuit court against the appellants, Guy Barrett and A. G. Barrett, doing business under the name of Devil's Hollow Stone Company, seeking to enjoin them from so operating their quarry as to interfere with the appellees' rights, before mentioned, and claiming that the operation of it in the manner stated was and had been a nuisance, which was sought to be abated by the injunctive process prayed for in the petition. The objectionable acts in the operation of the quarry sought to be enjoined can best be stated in the language adopted in the petition, which is as follows:

"In operating this quarry the defendants have continuously for more than five years last past, blasted the rocks from the river cliff, over a space about 150 feet from the bottom of the quarry to the top of it, with heavy charges of dynamite, powder, and other such explosives, which have thrown rocks entirely across the river and upon the property of plaintiffs, thereby endangering their lives on divers different occasions, and have repeatedly shaken the houses of plaintiffs upon their foundations, like an earthquake would do; have knocked the plastering from their walls, and put their families in fear of their lives. During all of said time defendants have also operated a rock crusher, with steam, at the same point, crushing the hard stones thrown out of the hillside by said blasts, and thereby filled the air with dust, soot, and smoke, which is blown into the homes of plaintiffs, the dust, soot, and smoke so thick and penetrating as to injure the furniture of their homes, and otherwise render their homes uncomfortable, and the noise from the peculiar machinery of the rock crusher, which is run day and night, at times is so great as to drown out and prevent ordinary conversation in the homes of several of plaintiffs, and prevent sleep at night."

The answer consists of a general denial, and in another paragraph an effort is made to rely upon a prescriptive right to so manage and use the quarry, as it is claimed that the quarry had been operated at the same place since about the year 1852; and it is further urged in defense that appellants, since they began its operation, have expended considerable sums of money in equipping it to its present capacity, and that appellees stood by without protest and acquiesced in this expenditure; and, for these reasons, they should be denied the relief sought. It is also insisted in the answer that some of the appellees have acquired their property since the commencement of the operation of the quarry by appellants, and that, so far as these are concerned, they are not entitled to any relief upon the insisted doctrine that they "have moved to the nuisance," if one exists. With the exception of the latter contention as to such defendants, the reply is a denial of the allegations of the answer. After very extensive preparation and a submission of the cause, the court adjudged, in substance, that appellants be perpetually enjoined from discharging, or permitting to be discharged, such blasts of dynamite or other explosives in the operation of the quarry as would jar the houses of the plaintiffs, or any of them--

"to such an extent as would interfere with the comfortable or reasonable enjoyment of their homes, or houses; or to cause said houses, or any of them, to vibrate or shake; or to cause the plastering or tiling, or other coverings of the walls or ceiling, in any of said houses to crack or fall or be in any way damaged; or cause other injury to any of said houses; or cause rocks or dirt or other débris to be thrown on the property of plaintiffs, or any of them."

The appellants were further enjoined from--

"making, or permitting to be made, at night any noise by the machinery at the quarry, or in the operation thereof, which would disturb or interfere with the peace and quiet of the homes of plaintiffs, or any of them, or with the rest or sleep of the plaintiffs, or any of them, or their families, or any of them."

The court declined to enjoin the appellants from the operation of the rock crusher. From so much of the judgment as granted relief to appellees, the appellants appeal; and from the refusal of the court to restrain in any manner the operation of the rock crusher, the appellees prosecute a cross-appeal.

The first ruling of the court brought in question by a special demurrer to the petition and by a motion to require plaintiffs to elect, is the right of appellees to jointly prosecute this suit. That they may do so under the facts disclosed by their pleading, there can be no doubt. Sustaining the right, the author of the excellent work of Wood on Nuisances (2d Ed.) page 1160, says:

"Where several persons are injured by a common nuisance, although varying in degree but having a common effect, they may join in a bill for an injunction, but there can be no recovery of damages."

Section 22 of our Civil Code of Practice is:

"All persons having an interest in the subject of an action and in obtaining the relief demanded may be joined as plaintiffs, unless it is otherwise provided in this Code."

Mr. Newman in his work on Pleading and Practice, § 153, in commenting on this section of the Code, supra, says:

"So, also, different persons owning separate tenements affected by a nuisance may unite as plaintiffs to restrain by injunction its continuance."

This rule of practice has also been upheld by this court in the following cases: Louisville Coffin Co. v. Warren, 78 Ky. 400; Seigfreid v. Hays, 81 Ky. 377, 50 Am. Rep. 167; Palestine Building Association v. Minor, 86 S.W. 695, 27 Ky. Law Rep. 781; Beckham v. Brown, 40 S.W. 684, 19 Ky. Law Rep. 519. Many other authorities might be cited, but the rule permitting the right of persons similarly circumstanced and affected by the acts complained of to unite in one petition for relief is so universally settled as to render further consideration of the question unnecessary.

That this character of action may be maintained where the facts justify it is equally as well settled as the question just disposed of. The right to the remedy by the individual citizen is recognized by Mr. Pomeroy in his work on Equity Jurisprudence in section 1349, wherein he says:

"A public nuisance will also be restrained at the suit of a private person who suffers therefrom a special and particular injury distinct from that suffered by him in common with the public at large."

And the same author again says, in section 1350:

"It is a well-settled doctrine that equity will restrain a private nuisance at the suit of the injured party. * * * The equitable jurisdiction is therefore based upon the motion of restraining irreparable mischief, or of preventing vexatious litigation, or a multiplicity of suits."

The same right to such relief is found in all standard works on equity jurisprudence or equitable relief. And in Cyc. vol. 29, p. 1191, the doctrine is thus stated:

"The question in all cases is whether the annoyance produced is such as to materially interfere with the ordinary comfort of home existence. It is not, of course, necessary that the annoyance and discomfort should be so great as to actually drive the person complaining thereof from his dwelling; but if the alleged injury be a plain interference with the ordinary comforts and enjoyments, there is a nuisance, no matter how slight the damage, provided the inconvenience be actual and not fanciful."

Many cases and authorities almost innumerable could be cited from other jurisdictions, but which we think is unnecessary. The maxim, "Sic utere tuo ut alienum non lædas," is an ancient, as well as a just, rule, and is patterned after the one which is elsewhere more comprehensively stated, "And as ye would that men should do to you, do ye also to them likewise." The right to this remedy, under the pleadings and proof here, has, on numerous occasions,...