Bowen v. Mauzy

• Decision Date: 12 January 1889
• Citation: 117 Ind. 258,19 N.E. 526
• Parties: Bowen et al. v. Mauzy.
• Court: Indiana Supreme Court

117 Ind. 258

19 N.E. 526

Bowen et al.

v.Mauzy.¹

Supreme Court of Indiana.

January 12, 1889.

Appeal from circuit court, Rush county; Samuel A. Bonner, Judge.

Action by George G. Mauzy against Abram S. Bowen and John T. Kirkpatrick to enjoin a nuisance. Defendants' demurrer to the complaint was overruled, and defendant Bowen appeals.Wm. A. Cullen, David S. Morgan, and Howard E. Barrett, for appellant. C. Cambern, T. J. Newkirk, and John Q. Thomas, for appellee.

Olds, J.

This action was brought in the Rush circuit court for injunction to enjoin the defendants from converting a house adjoining the plaintiff's residence into a blacksmith shop. The plaintiff avers in his complaint that he is the owner in fee of city lot No. 68, in the town of Rushville, and has his residence property thereon, and resides in the same, with his wife and family, and has resided there for a long number of years, in peace and quiet; that defendant Bowen is the owner of lot 67 in said town, and situated thereon immediately west of the plaintiff's residence, and 28 feet from the front door thereof there is an old one-story frame shop which the defendants Bowen and Kirkpatrick are converting into a public blacksmith shop, for the purpose of shoeing horses and doing a general blacksmithing business; that the erection and maintaining of a blacksmith shop at such place will destroy the free use of the plaintiff's property, and will essentially interfere with the comfortable enjoyment of the lives of himself and family, and of his property; that if it is allowed to be maintained the gases and smoke from the forges in the shop will at all times fill his house with smoke and smells unbearable and offensive to the senses, and very injurious to the health, of himself and family to such an extent that he will have to abandon his property; that the noise, clatter, loud and boisterous language that will be used in and around the shop, the accumulation of vehicles and filth in and about the shop, will destroy the free use of the plaintiff's property, and make life a burden to himself and family, all of which would be very offensive, injurious, and detrimental to the health of plaintiff and his family, and which would be to his great damage in the sum of $2,000.

Prayer for an injunction perpetually enjoining the defendants from erecting, maintaining, or using the building as a blacksmith shop.

The defendants below filed a motion to strike out parts of the complaint, which was overruled, and exceptions taken. They then filed a demurrer to the complaint, which was overruled by the court, to which action of the court in overruling the demurrer the defendants excepted and refused to answer, and the court rendered judgment in favor of plaintiff against the defendants, perpetually enjoining them from using the building as a blacksmith shop. The defendants objected and excepted to the judgment, and the defendant Bowen appeals to this court.

The only error assigned and relied upon by counsel for the appellant is the overruling of the demurrer to the complaint. The material averments in the complaint are that the appellee is the owner of lot 68 in the town of Rushville, on which he resides and has resided with his family for a long number of years; that the appellant Bowen is the owner of lot 67 adjoining lot 68, and 28 feet distant from appellee's residence, on appellant's lot, there is a frame shop which appellants Bowen and Kirkpatrick are converting into a public blacksmith shop, for the purpose of shoeing horses and doing a general blacksmithing business.

The additional allegations are mere conclusions assuming that, by reason of converting the building into a blacksmith shop for shoeing horses and doing general blacksmithing, it will destroy the free use of appellee's property, essentially interfere with the comfort of himself and family, smoke from the forges will fill his house, and be unbearable and offensive to the senses, and injurious to the health, of himself and family.

In a proper case an injunction will lie to prevent the use of property for operating a business which is a nuisance per se, and even to be used for a business not a nuisance per se, if threatened and intended to be conducted in an improper manner, so as to constitute a nuisance. An injuntion will lie to prevent a nuisance threatened and in progress, as well as to abate those already in existence. See Keiser v. Lovett, 85 Ind. 240;Appeal of Czarniecki, 11 Atl. Rep. 660;Cleveland v. Gas-Light Co., 20 N. J. Eq. 201;Biddle v. Ash, 2 Ashm. 211.

In the well considered case of Owen v. Phillips, 73 Ind. 284, the court says: “It is not every injury which will support an action for damages that will entitle the complainant to relief by injunction,” (citing numerous authorities in support of that doctrine,) and then adds: “There are solid reasons supporting this rule. A lawful business may be so conducted as...