Bloch v. McCown

• Decision Date: 06 June 1929
• Docket Number: 1 Div. 532.
• Citation: 219 Ala. 656,123 So. 213
• Parties: BLOCH ET AL. v. MCCOWN ET AL.
• Court: Alabama Supreme Court

123 So. 213

219 Ala. 656

BLOCH ET AL. v. MCCOWN ET AL.

1 Div. 532.

Supreme Court of Alabama

June 6, 1929

As Modified, on Denial of Rehearing, June 27, 1929.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill to enjoin construction and operation of a gasoline filling station and tire repair shop by Jacob D. Bloch and others against James M. McCown and others. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed and remanded.

Gaillard Mahorner & Gaillard, of Mobile, for appellants.

Lyons Chamberlain & Courtney, of Mobile, for appellees.

SAYRE J.

Appellants' bill in chancery seeks to enjoin the construction and operation of a gasoline filling station and tire repair shop on the lot adjacent to his dwelling on Government street in the city of Mobile. The averment is that the filling station and tire repair shop will occupy the lot at the corner of Government and Bayou streets, 55 by 107 feet. Appellant Bloch's lot fronts on Government street with an "L" over to Bayou, and a diagram of the neighborhood, submitted in his brief-and which we think we may refer to for this limited purpose, since there is no dispute about the facts-shows appellee's lot as having an equal frontage on Government street. Members of appellant's family and Virginia Thomas, a neighbor, join him in the bill and in this appeal taken from a decree sustaining a demurrer to the bill. It is averred that the part of the city at the intersection of the two streets named has been for 40 years or more residential in character, and that the lot on which defendant McCown is erecting the structure or structures complained of was until recently an "old residential property known as the Oliver J. Semmes homestead." It is averred that "the inevitable incidents to and attendant upon the operation of a gasoline filling station are that there will be a continuing emission of odors, vapor, dust, smoke, gas and noise, and there will be thrown from the headlights of automobiles entering upon or leaving said filling station glaring lights from said headlights of said automobiles flashing at unreasonable hours of night into the bedrooms and other portions of the premises of complainants; and any or all of said incidents and happenings will inevitably disturb the peace and comfort of your complainants," and, further, that "the operation of a tire service station on said lot will inevitably be attended by loud and disagreeable noises due to the manipulation of steel or other metal parts of automobile wheels with hammers or other instruments and other noises incident to the operation of a tire shop; all of which will inevitably disturb the peace and comfort of your complainants." The bill shows that complainant, as soon as he was informed of defendant's purpose to erect the structure or structures complained of gave defendant McCown notice of his protest and purpose to resist the building and the contemplated business therein, notwithstanding which defendant is now proceeding to build.

Section 9271 of the Code, affirming a principle of precedent general law, declares that: "A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man."

It is hardly necessary to repeat the further definitions to be found in our books or the general observations respecting the limitations which the courts impose on the uses of landed property out of deference to the rights of adjacent or neighboring property owners. Our recent cases of Kyser v Hertzler, 188 Ala. 658, 65 So. 967, and City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L. R. A. 1918F, 1020, may be noted. In the first-cited case a decree overruling a motion to dissolve a temporary injunction against a livery stable was affirmed with the following quotation from High on Injunctions, which we now repeat: "The law may be regarded as settled that where a business, although lawful in itself, becomes obnoxious to neighboring dwellings and renders their enjoyment uncomfortable whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise the carrying on of such business is a nuisance which equity will restrain. Nor is it necessary that the nuisance be injurious to health to warrant the interference." 1 High on Injunctions, § 772.

The court knows what a filling station and repair shop is, and is of opinion that the business indicated by these...