Borgnemouth Realty Co. v. Gulf Soap Corp.

• Decision Date: 16 June 1947
• Docket Number: 38477.
• Citation: 31 So.2d 488,212 La. 57
• Court: Louisiana Supreme Court
• Parties: BORGNEMOUTH REALTY CO., Limited, v. GULF SOAP CORPORATION. MELERINE et al. v. SAME.

31 So.2d 488

212 La. 57

BORGNEMOUTH REALTY CO., Limited, v. GULF SOAP CORPORATION. MELERINE et al. v. SAME.

No. 38477.

Supreme Court of Louisiana

June 16, 1947

Appeal from Twenty-Fifth Judicial District Court Parish of St. Bernard; Albert Estopinal, Jr., Judge.

Edward Rightor, of New Orleans, for defendant and appellant.

Oliver S. Livaudais, Philip R. Livaudais, and Oliver S. Livaudais Jr., all of New Orleans, for plaintiffs and appellees.

FOURNET Justice.

Separate suits were filed against the Gulf Soap Corporation, one by ten alleged resident property owners and the other by the Borgnemouth Realty Company, Ltd., owner of a subdivision, to enjoin the defendant's operation of a rendering plant in St. Bernard Parish on the banks of Lake Borgne (or Violet) Canal at Violet, Louisiana, on the ground that the same is a nuisance. The plaintiffs also seek to have the plant removed and to recover damages and attorney fees.

The two suits were consolidated for trial and by agreement of counsel the case was submitted for decision on the merits at the same time and on the same evidence as it was submitted for a decision on the rule for the issuance of a preliminary injunction.

There was judgment in favor of the plaintiffs declaring the defendant's plant to be both a public and a private nuisance, perpetually enjoining and restraining the defendant, its agents, officers, and employees, from further using the plant, and ordering them to remove the same within 30 days, in default whereof the sheriff was ordered to remove the plant at the expense of the defendant. There was also judgment awarding $500 attorney fees and awarding to each of the ten alleged resident property owners the sum of $250 as damages.

The defendant appealed suspensively from this judgment. Subsequently, the trial judge modified this judgment in some respects and changed the order of appeal to one of devolutive only and this court, in the exercise of its supervisory jurisdiction set aside the action of the lower court and reinstated the suspensive appeal. See, Borgnemouth Realty Company, Ltd., et al. v. Gulf Soap Corporation, 211 La. 255, 29 So.2d 841.

Both actions are based on the allegation that the defendant, by hauling the carcasses of animals to its rendering plant where they arrived at all hours of the day and night in various stages of decomposition, exuding unbearable odors, fouling and poisoning the atmosphere, attracting flies, and producing unsanitary conditions in and around the property of the plaintiffs, created a condition that has impaired and endangered the health and comfort of all those living there and has materially and substantially depreciated the value of the property belonging to them. The realty company alleged as an additional cause of action the injury sustained by it when fur bearing animals on its lands were destroyed by reason of the discharge into the adjacent canal of deleterious substances that eventually found their way into the marshes and swamps on the company's lands. The individual plaintiffs ask for damages in the sum of $2,000 each and the company is seeking to recover damages in the amount of $10,000. They also ask for attorney fees.

Answering the suits the defendant denied the basic allegations of the petitions and averred that its plant, formerly operated at Arabi, Louisiana, for a quarter of a century without disturbance, was only moved to Violet during the war when the government appropriated its Arabi site.

It admitted the new plant, erected at a cost of more than $100,000, did emit some odors, due largely to the company's inability, because of war scarcities and labor difficulties, to secure proper machinery to suppress them, and due also to the company's inability to secure the necessary railroad cars for the prompt removal of the bones that accumulated during the plant's early operation at the new site because of wartime transportation difficulties, but it denied the odors emitted by the plant were unhygienic or injurious to health. The defendant further averred that it has never ceased its endeavors to devise a method of eliminating completely the odors emanating from the plant and that in fact the discomfort and unpleasantness occasioned by the accumulation of bones has recently been greatly alievated by the ease in transportation facilities and the company's ability to now secure adequate railroad cars for their prompt removal.

Since the appeal was lodged here, the defendant has filed a motion, supported by affidavits, wherein it is alleged that all of the nuisances originally complained of in these actions have been abated and the court is requested to remand the case to the lower court to have these facts established by the introduction of proper evidence, with the ultimate dismissal of the complaints.

Under the express provisions of the Revised Civil Code, to be found in Chapter 3 of Title IV dealing with servitudes of land under the heading 'Of Servitudes Imposed by Law,' it is provided that 'The law imposes upon the proprietors various obligations toward one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.' Article 666. 'Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him' (Article 667), other than inconvenience not amounting to real damage. Article 668. And 'If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.' Article 669. (Italics ours.)

As was pointed out in the recent decision of this court in the case of Devoke et al. v. Yazoo & M. V. R. Co., La.Sup., 30 So.2d 816, 819, 'It is the universally accepted rule of law that 'The owner of property has a right to conduct thereon any lawful business not per se a nuisance, as long as the business is so conducted that it will not unreasonably inconvenience a neighbor in the reasonable...