Burditt v. Swenson

• Decision Date: 01 January 1856
• Citation: 17 Tex. 489
• Parties: J. A. BURDITT AND ANOTHER v. SVANTE M. SWENSON.
• Court: Texas Supreme Court

17 Tex. 489

J. A. BURDITT AND ANOTHER

v.SVANTE M. SWENSON.

Supreme Court of Texas.

1856.

What constitutes a nuisance is well defined. The word means, literally, annoyance; in law, it signifies, according to Blackstone, “anything that worketh hurt, inconvenience or damage.”

To constitute a nuisance, it is not necessary that the annoyance should be of a character to endanger health; it is sufficient if it occasion that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable.

It would seem that a livery stable in a town is not necessarily or prima facie a nuisance, but that it depends on whether from the manner in which it is either built, kept or used, it destroys the comfort of persons owning and occupying adjoining premises, or impairs the value of their property.

Where the defendants built and kept their livery stable, in a town, in such a manner that it was a nuisance to the plaintiff, who sued to enjoin the keeping of the stable in that place; and the defendants did not propose to keep their stable differently from the manner in which they had been keeping it, nor to alter the construction of it, but insisted that it was well kept and properly constructed, and that it was not a nuisance; and the jury found for the plaintiff, in general terms, thereby affirming that in the manner of its construction and the way in which it was kept, it was a nuisance; upon which verdict the court below entered a decree requiring the construction of the stable to be changed, and enjoining the defendants from keeping said stable in an uncleanly and filthy manner, etc.; this court reformed the decree by perpetually enjoining the defendants from keeping their livery stable at that place.

Appeal from Hays. Tried below before the Hon. John Hancock.

Suit by appellee against appellants, commenced in Travis county, February 28, 1853. The petition was as follows:

Your petitioner, Svante M. Swenson, a resident citizen of the county and state aforesaid, brings this his suit against J. A. Burditt and Sherman Case, residents and citizens of said county and state; and thereupon your petitioner states that on the 17th day of December, A. D. 1850, he purchased lot No. 4 in block No. 84, fronting on the east side of Congress avenue in the city of Austin, and that during the year 1851 he erected and fitted up a store-house on said lot, where he opened and kept from thence hitherto, and still keeps, a general assortment of goods, wares and merchandise, consisting of all kinds of dry and fancy goods, jewelry and groceries, furniture and upholstery; that prior to the grievances hereinafter complained of, your petitioner had made extensive additions to his said store-house, and covered the lot aforesaid with spacious and expensive buildings, for the purpose of carrying on said mercantile business, for which the said buildings are alone suited. Your petitioner's property aforesaid is of great value, to wit: the value of seven thousand dollars. Your petitioner further represents that ever since the establishment of his said store-house, the same has been much resorted to by ladies and gentlemen, who came to purchase goods and supplies from your petitioner, and who, in approaching said store and returning therefrom, had to pass along the usual sidewalk upon the east margin of said Congress avenue. That about the 25th of November, A. D. 1852, and whilst your petitioner was engaged in a profitable business, with a full supply of goods, etc., on hand, the said defendants commenced building a large livery stable upon lot number 3 in said block, and immediately south of and adjoining the premises of your petitioner, and which said lot was purchased by said defendants immediately preceding their commencing to build said stable; that whilst the defendants were erecting said stable, your petitioner repeatedly remonstrated against the same, and pointed out the great injury which would thereby result to your petitioner, and requested them to desist from building the same, which they declined and refused to do, and proceeded to complete the same. The said stable is situated on and fronts upon the very margin of said Congress avenue, and extends back nearly the whole depth of your petitioner's store. Your petitioner further represents that on or about the tenth day of January last, the said defendants opened their said stable to the public and introduced therein all sorts of horses, mules and jacks, which they still continue to board and keep; that the main and only entrance to said stable is immediately upon the margin of said avenue, and within a few feet of the entrance into your petitioner's store; that the defendants are in the habit at all times, both early and late, of introducing a great number of carriages, horses and ox-wagons into said stable through the entrance thereof, and of keeping said horses and carriages standing for a great length of time in said street and upon said sidewalk, thus blocking up the passage to your petitioner's store and diverting his customers therefrom; that the constant stamping of horses and tramping of the ground in front of said stable causes great clouds of dust to be blown and carried into your petitioner's store to the great damage of his goods; that the said stable is kept in a very uncleanly condition, and that the defendants take from the same large quantities of manure and other filth and deposit the same in the back part of the stable lot, and immediately in front of some of the windows of your petitioner's storehouse; that said manure and filth has already accumulated to such an extent that it now causes an unhealthy and disagreeable effluvia, exceedingly offensive and prejudicial to your petitioner and those under his employment. And your petitioner avers that this evil will be greatly increased as the weather becomes warmer; that during the summer great collections of flies will be induced and generated by such filth, and which will necessarily infest the store of your petitioner, to the great damage of his goods.

Your petitioner further represents to your honor, that, prior to the erection of said stable, he had effected insurance to the amount of twelve thousand dollars and upwards in the city of New York, upon certain goods and merchandise in his store contained, and which insurance still continues; that in obtaining such insurance he described the character and location of his said storehouse as well as that of the buildings then existing near the same on the adjoining lots, and that, owing mainly to the fact that their distance and position rendered the danger of fire comparatively remote, he was enabled to obtain said insurance upon reasonable terms. Your petitioner fears that under these circumstances, should his goods or storehouse be destroyed by fire, originating or caused by said stable, his right under said policy of insurance may be lost, inasmuch as said stable has been built subsequent to said insurance. Whether this would be so or not your petitioner fears such a result; and in any event the cost of his insurance will be much increased, when the existence of said stable, situated as it is in a very few feet of petitioner's store, is known by the insurance office.

Your petitioner avers that the danger of fire to his storehouse and goods has been greatly increased by the erection and occupation of said livery stable, and as one evidence of this fact your petitioner states that there is no fire-place in said stable, and yet he has more than once seen a fire built up and burning upon the dirt floor of the same during the late cold weather. Your petitioner charges that in consequence of the facts hereinbefore alleged, and the further fact that the defendants keep great quantities of hay, fodder and other inflammable materials in said stable; the result is, that the said stable tends to the depreciation of the value of your petitioner's property; endangers its existence by fire; drives customers from his store; destroys his business, and does him incalculable and irreparable injury. Your petitioner therefore charges that the livery stable is a nuisance to himself and the neighborhood, but productive of much greater injury to him than to any person.

The premises considered, therefore, your petitioner prays that your honor will grant the necessary process, requiring said defendants to appear and answer this petition, and show cause, if any they can, why they should not be perpetually enjoined and restrained from keeping, using and occupying the said house as a livery stable, and from keeping horses therein, and from keeping hay, fodder and other inflammable materials therein; from causing filth and depositing the same upon said lot, and also that they show cause why said nuisance should not be abated; that your honor grant to your petitioner a writ of injunction for the purposes aforesaid, and that at the hearing of the cause the same may be perpetuated, and that your petitioner may have judgment and the proper writ to abate said nuisance, and recover of said defendants damages to the amount of two thousand dollars, which petitioner alleges he has already sustained in consequence of said nuisance, and all further damages which he may sustain previous to the hearing of said cause. Your petitioner prays judgment for his cost herein expended, and for such other and further relief in the premises as to justice and equity may appertain, etc.

The answer and amended answers of the defendants were mislaid, but there was an agreement in the transcript, by counsel, that it should be considered that the answers were complete denials, and set every matter of justification which could be set up of the erection and keeping of the stable in that place. They also claimed heavy damages in reconvention. May 28, 1853, a preliminary injunction was ordered. Fall term, 1853, the preliminary injunction was reformed, so as to allow the defendants to open...