Bristol Door & Lumber Co v. City Of Bristol

• Decision Date: 29 June 1899
• Citation: 33 S.E. 588,97 Va. 304
• Court: Virginia Supreme Court
• Parties: BRISTOL DOOR & LUMBER CO. v. CITY OF BRISTOL.

33 S.E. 588

97 Va. 304

BRISTOL DOOR & LUMBER CO.

v.CITY OF BRISTOL.

Supreme Court of Appeals of Virginia.

June 29, 1899.

NUISANCE—ABATEMENT BY MUNICIPALITY-RESTRAINING ABATEMENT.

1. Equity may restrain proceedings of a municipal corporation to remove an alleged nuisance, where the proceedings encroach upon private rights and are productive of irreparable injury.

2. That disorderly and lewd persons are allowed to occupy a building, and it is permitted

to become filthy and unsightly, resulting in its being a constant source of annoyance to all parties residing in its vicinity, and causing a depreciation in the value of surrounding property, does not justify a municipal corporation in destroying the building, as only the wrongful use can be stopped.

Appeal from corporation court of city of Bristol.

Suit by the Bristol Door & Lumber Company against the city of Bristol to restrain abatement of an alleged nuisance. From a decree denying the relief, the plaintiff appeals. Reversed.

Rhea & Peters, for appellant.

Bailey, Price & Byars, J. S. Ashworth, J. W. Read, and W. S. Hamilton, for appellee.

HARRISON, J. At a regular meeting of the council of the city of Bristol held February 4, 1896, a resolution was adopted declaring a certain building belonging to appellant, know as "Buffum's Stalls, " to be a nuisance, and the mayor of the city directed to proceed to have the same abated as such.

On the 19th day of March, 1896, the mayor of the city informed appellant in writing of the action of the council, and notified it that, unless the building in question was removed in 30 days from March 20, 1896, he would proceed to enforce the ordinance of the city, prescribing a fine of not less than one dollar nor more than twenty dollars for each day the building thereafter remained, and that, in addition thereto, he would have the same removed at the expense of appellant.

On the 20th day of April, 1896, appellant applied to, and obtained from, the judge of the corporation court of the city of Bristol an injunction restraining the execution of the resolution of the city council, which injunction was dissolved by the decree appealed from on the 5th day of April, 1897, and the bill dismissed.

The appellant is a corporation incorporated under the laws of Virginia, and engaged in the manufacture of doors, window sash, moldings, and other house furnishings. About two years before the institution of these proceedings, it purchased, for the purpose of conducting its business, a plant on Williams street, in the city of Bristol. This purchase included a large two-story frame building, situated near the factory, consisting of eight tenements, all under one roof, and containing in all some 40 rooms, used by the owners of the factory for occupation by its employes.

The bill charges that appellant knew nothing of the resolution of the council, and that it had no notice of any character that the city authorities had under consideration the matter of declaring its property a nuisance, and that there was no legal testimony before the council that its property was a nuisance. The bill further charges that said property is not a nuisance; that it in no way endangers the life or health of the citizens of the city; that its occupants are not disorderly or lewd people; that in no respect and for no reason could the same be accounted a public nuisance; and that it is valuable, not only as homes for its employes, but for other purposes, such as storage rooms for lumber, etc.

The appellee demurred to this bill, and in its answer vouched the following section of its charter, defining the powers of the city council, as the authority for its action: "To acquire and compel the abatement of all nuisances within said city at the expense of the person or persons causing the same, or the owner or owners of the ground whereon the same shall be; to prevent and regulate slaughter houses, soap and candle factories in said city, for the exercise of any dangerous, offensive, or unhealthy business, trade, or employment therein; and to regulate the transportation of coal and other articles through the streets of said city." The answer then alleges, as ground for the resolution complained of, "that appellant had allowed said building to become a nuisance by keeping disorderly and lewd persons therein, by permitting the same to become filthy and unsightly objects; being a constant source of annoyance to all parties residing in their vicinity, and greatly depreciating the value of surrounding property."

The bill states a clear case for the intervention of a court of equity, and the demurrer thereto was properly overruled.

The facts alleged, if true, show that appellant was about to suffer at the hands of appellee an irreparable injury in the destruction of its property. In such cases the law is well settled that courts of equity have jurisdiction to restrain the proceedings of municipal corporations, where those proceedings encroach upon private rights, and are productive of irreparable injury. High Inj. (Ed. 1874) tit "Municipal Corporations, " pp. 463-471; Yates v. City of Milwaukee, 10 Wall. 497. In the case cited the bill was filed by the appellant, Yates, to restrain the city of Milwaukee from interfering with his wharf that had been condemned by the city as an obstruction...