Caskey v. Edwards

• Decision Date: 06 January 1908
• Citation: 107 S.W. 37,128 Mo. App. 237
• Parties: CASKEY et al. v. EDWARDS et al.
• Court: Missouri Court of Appeals

107 S.W. 37

128 Mo. App. 237

CASKEY et al. v. EDWARDS et al.

Kansas City Court of Appeals. Missouri.

January 6, 1908.

Rehearing Denied January 27, 1908.

1. LIVERY STABLE KEEPERS — REGULATION — LOCATION.

Ordinances prohibiting the location, erection, or construction of a livery stable within 200 feet of a residence, and directing that no permit shall be issued for the building of any such stable so located, cannot be nullified by erecting a practically new building under the pretense of repair.

2. SAME.

The fact that a structure 34 feet wide and 90 feet long was to be changed, under the guise of repair, to 60 feet wide by 134 feet long, will justify the conclusion that the purpose is not to repair, but to build a new structure within the meaning of an ordinance prohibiting the location, erection, or construction of a livery stable within certain bounds.

3. SAME.

Livery stables, if not nuisances per se, are of such character of undesirable and hurtful institutions as may be kept at such distances from residences, as to greatly lessen, if not destroy, their offensiveness.

4. EQUITY — JURISDICTION — CRIMINAL PROSECUTIONS.

Equity cannot be turned into a criminal department, and the chancellor made to serve in the duties of the judge of the criminal court.

5. INJUNCTION — CRIMINAL ACTS — PERSONAL INTEREST OF PLAINTIFF.

Though all citizens are alike interested in the enforcement of law, where an unlawful act is of special and particular irreparable hurt to an individual and he has no other adequate remedy, he may have injunction to prevent it.

6. SAME — NUISANCE — SPECIAL INJURY TO PLAINTIFF.

Plaintiffs showed that a proposed livery stable to be erected on the site of an old one, within 50 feet of a private house, and declared to be unlawful by ordinance, would greatly and specially injure the value of their property, that unhealthy odors and noxious vapors would inevitably arise and specially destroy the comfort and health of their homes, and that the smaller original structure kept by defendant was offensive and hurtful to the comfort of the neighboring inhabitants, and no less annoyance would result from the new one. Held, that there was a special injury to plaintiffs threatened, justifying an injunction to restrain the granting of a permit to build the new stable.

7. SAME.

Though the matter complained of is not a nuisance per se, where it is clearly shown to be a nuisance in fact, not merely greater in degree than that of the general public, but special in character, it may be enjoined at the suit of an individual.

8. PLEADING — COMPLAINT — DEFECTS — FAILURE TO STATE CAUSE OF ACTION — WAIVER — OBJECTION TO EVIDENCE.

The practice of failing to demur and objecting to any evidence under a petition is not favored by the courts; for, while failing to demur does not waive an objection that a cause of action is not stated, yet an answer to a petition admits that a case has been sufficiently stated to call for an answer.

9. NUISANCE — INJUNCTION — GROUNDS.

Though courts will not grant an injunction to allay the fears and apprehensions of individuals, if it be shown that there is a reasonable ground to apprehend the erection of the nuisance, that defendant threatens it, and has the power to commit it, the writ will be issued.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Injunction by Anna D. Caskey and others against Samuel E. Edwards and others to restrain the issuance of a permit to build a livery stable. Mary E. Veatch intervenes. From a finding and decree for plaintiffs, Mary E. Veatch appeals. Affirmed.

C. W. Chase and L. H. Hatfield, for appellant. Moore, Handy & Kimbrell, for respondents.

ELLISON, J.

This is a proceeding in equity to restrain the granting of a permit to build a livery stable. The proceeding was begun against the superintendent of buildings for Kansas City. Afterwards the defendant Veatch, who applied to the superintendent for permission to build the stable, came into court, was made a party defendant, and filed her answer. The finding and decree of the trial court were for the plaintiffs, and defendant, the superintendent, did not appeal, but defendant Veatch brought the case here.

It appears that there is an ordinance for Kansas City prohibiting the location, erection, or construction of a livery stable within 200 feet of a residence, and also an ordinance directing that no permit shall be issued for the building of any such stable so located. It also appears that defendant Veatch, before the passage of the ordinance and for a long time, has had a livery stable on a lot of hers which was within 200 feet of the residences of plaintiffs. But the matter of which plaintiffs complain is that she now purposes building a new structure, greatly enlarged, so that it would be of more than twice the size, and cover more than twice the area of the original. Defendant claims that, having the right to maintain the original, she has a right to erect and construct the one proposed, and she bases this claim on the right to repair. While a structure existing within certain limits when the ordinance prescribing the limits is passed, such as frame buildings within fire limits and livery stables within prescribed limits, may be repaired after the ordinance is passed, yet it must strike any one that substantially a new building cannot be erected under the pretense of repair. An ordinance of the nature we are considering cannot be nullified by subterfuge or evasion any more than any other law. The structure now in existence is comparatively of small consequence compared to that which is proposed. It now is back from the street, and it is proposed to dig new foundations and basements upon which will be constructed, according...