Chambers v. Cramer et al.
| Decision Date | 30 March 1901 |
| Citation | 49 W.Va. 395 |
| Parties | Chambers v. Cramer et al. |
| Court | West Virginia Supreme Court |
A blacksmith shop or a machine shop is not a nuisance per se. (p. 400).
It is a general rule that when the thing complained of is not a nuisance per se, but may not become so, according to circumstances, and the injury apprehended is eventual or contingent, equity will not interfere; the presumption being that a person entering into a legitimate business will conduct it in a proper way, so that it will not constitute a nuisance, (p. 401).
To warrant the perpetuation of an injunction restraining, as a threatened nuisance, the erection of a building proposed to be used for legitimate purposes, the fact that it will be a nuisance if so used must be made clearly to appear, beyond all ground of fair questioning, (pp. 403, 404).
That erection of building will increase rates of insurance upon neighboring property is not ground for injunction to restrain such erection, (pp. 404, 405).
Appeal from Circuit Court, Mingo County. Bill by S. T. Chambers against George F. Cramer and J. W. McCready. Decree for plaintiff, and defendants appeal.
Reversed, and bill dismissed without prejudice.
H. K. Shumate and John S. Marcum, for appellants.
Sheppard & Goodykoontz, for appellee.
S. T. Chambers filed his bill in the circuit court of Mingo County against George F. Cramer and J. W. McCready, alleging that he was the owner of certain valuable real estate in the town of Matewan, in said county, known as lot 14, upon which was located a valuable house which he, with his family, occupies as a residence and in which he had been keeping a hotel for several years. Said house had cost something like a thousand dollars, was in good repair and condition suitable for the entertainment of guests and the traveling public. He also had on said lot another valuable store building, costing and worth at least one thousand four hundred dollars; that in the hotel plaintiff had valuable personal property consisting of household and kitchen furniture worth several hundred dollars; that plaintiff, together with his sou, as partners, had a stock of merchandise in the storehouse of value more than five thousand dollars, in which plaintiff had an important and controlling interest; that recently defendants claimed to have purchased a lot in close proximity to plaintiff's property, there being only a small alley of fifteen feet width intervening between the two properties; that plaintiff was informed that defendants were going to construct a building on their said lot in which they were going to locate an engine and conduct what they called a machine shop and blacksmith shop; that soon afterwards plaintiff served notice in writing upon defendants that they should not construct such a building nor should they be permitted to keep and maintain any machine shops so close to the property of plaintiff, reciting that such shops and engines would greatly impair the value of plaintiff's property and endanger it by exposure to fire; that the same would constitute a nuisance which plaintiff would enjoin; that defendants paid no attention to said notice, but proceeded to the full construction of said building, and openly proclaimed their purpose of locating an engine therein and conducting a blacksmith and machine shop thereon, all of which would greatly reduce the value of plaintiff's property; that its location would constitute a great menace and danger to the property of plaintiff and others; that said building was a worthless wooden and cheap affair and liable and likely to be ignited by sparks emanating from the chimneys of the furnace of said blacksmith shop and the smokestack of the engine which they were threatening to locate in said shop; that if allowed to conduct said shops the noise and confusion occasioned by the workings and equipments of the shops would greatly disturb, annoy, irritate and confuse the plaintiff, his family living in the hotel, his guests and servants as well; that the location of the shops or engine would diminish not only the value of the property but the comfort and enjoyment of it; that the nuisance and inconvenience which said shops or engine would occasion would materially interfere with the ordinary comforts of human existence; that it was being constructed so close to plaintiff's property as to almost darken the windows of his buildings; that if said shops and engine were allowed to be operated and continued, smoke, effluvia and cinders from the chimneys of said building and said engine would constitute an offensive, obnoxious and undesirable element against the comfort and enjoyment of plaintiff's property; that since the construction of said shop the insurance companies had already increased the premiumn paid and to be paid by plaintiff on his property and he had been notified by the insurance companies that if said shops were maintained his insurance would be further increased; alleging that if defendants were allowed to conduct therein a black-smith, shop or to run machine shops therein it would comprise a nuisance of such a nature that the continuance of it would cause a constantly recurring grievance; that plaintiff was only able to procure insurance upon a portion of his said property and only for a low per cent, of its real value, and in case of fire great loss would come to plaintiff over and above the insurance valuation; that the establishment thereto would be an infringement of the property rights of plaintiff, and if permitted to be conducted or run or maintained they would cause irreparable wrong and mischief to plaintiff's property, and if allowed to be continued liable to produce immediate injury to plaintiff for which damage would afford no adequate compensation for the reason that the life of plaintiff as well as those of his family, guests and servants would be endangered; that J. W. McCready was insolvent, Cramer had no property in this State, except the interest mentioned worth perhaps not over four hundred dollars, and besides was a non-resident of the State. And prayed that defendants be perpetually inhibited and enjoined from conducting or maintaining such blacksmith shop, machine shop or works upon such premises and from locating any engine thereon calculated to endanger life or property of plaintiff, and for general relief. Plaintiff filed with his bill a map showing location of his property and the proposed building and the streets and alleys, also the notice served by him on defendants not to construct the building. On the 15th day of March, 1898, a temporary injunction was granted by the judge in vacation as prayed for in the bill. On the 18th day of May, 1898, defendants filed their demurrer, which was set down for argument. Defendants also tendered their joint and separate answer, to which plaintiff filed five exceptions, which exceptions were overruled and the answer filed. The answer denied all the material allegations of the bill, averring there would be no extraordinary danger from fire, that the machinery proposed to be put into the shops was of the most approved kind, almost wholly noiseless, denied that any smoke, effluvia or cinders or anything of the like nature would constitute any undesirable clement against the comfort and enjoyment of the property of any one, or that it would increase the insurance on any building in the town of Mate wan, or that the construction and operation of said plant would in any manner constitute a nuisance of any nature what-over or cause any wrong or mischief to the property of plaintiff or anyone else; denied the insolvency of either of the defendants and the non-residence of defendant Cramer; averred that they proposed to operate in said building two turning lathes, one planer, one shaver, one boarding mill, besides the blacksmith shop, the machinery of which would be put in place and operated by defendant McCready, described fully the proposed building, how it was to be constructed, sides covered with sheet iron., the roof made fire-proof, the floor of dirt, and that the whole of said building would be as near fire proof as it would be possible to make it; the forge in the blacksmith shop would be of the most improved pattern and the fire when put in the forge, (which is the only time even in the old patterned forges there could possibly be any danger), would be what is known as "hooded," that is, that the smoke, sparks, etc., would be collected in a funnel shaped smokestack and carried out of the building through a flue; that they had purchased and paid for over two thousand dollars worth of machinery to go in said plant, which machinery had arrived at said town of Matewan before the injunction was granted in this cause, and that the continuance in iorce of said injunction was absolutely ruinous to defendants' business and to their property rights; that it was not their intention to injure the property rights of plaintiff or anyone whatsoever, but merely desired to pursue a lawful, legitimate and useful business on their own property; and that said business instead of a nuisance, danger or menace was an enterprise badly needed in the town of Matewan; and again denied each and every allegation of said bill not specifically denied or ad-» mitted in the answer, and pray for the dissolution of the injunction and they be allowed to complete their said building and to conduct and maintain their business, and that the bill be dismissed. On the 1st day of June the cause was heard upon a written notice of motion to dissolve the injunction, when it was heard upon the bill and exhibits, the joint and separate answer of defendants and general replication thereto upon the depositions of witnesses taken and filed in the cause both by plaintiff and defendants, and upon the affidavits filed by plaintiff,...
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