Appeal
from Superior Court, Guilford County; Webb, Judge.
Action
by Luther H. Cherry and others against John Roy Williams to
restrain the use of a lot as a sanitarium. From a judgment
continuing a restraining order to the hearing, defendant
appeals. Modified and affirmed.
There
being direct, positive, and specific evidence that the
erection and use of a hospital for the treatment of
tuberculosis in a particular residential locality in the
manner proposed will be a source of real danger to the lives
and health of people living in that vicinity, such use will
be restrained to the final hearing of the application for a
permanent injunction, though defendant makes specific
response; a large part of his supporting evidence being
general in its terms and made without reference either to the
special locality or to the special manner in which the
particular hospital is to be constructed and carried on.
The
complaint alleged, and there was evidence tending to show
"(1) That the plaintiffs are residents and citizens of
the county and state aforesaid, and reside on Chestnut
street, in the city of Greensboro. (2) That the defendant
Dr. John Roy Williams, is a practicing physician residing in
said city, on said street, and is the owner of a lot fronting
fifty (50) feet in width on said Chestnut street running back
a distance of something over two hundred (200) feet in depth
from said street. (3) That the defendant, John Roy Williams
is now erecting on the said lot owned by him a building to be
used as a sanitarium for the treatment of tuberculosis, and
other infectious and contagious diseases, and has also, as
these plaintiffs are advised and believe, entered into a
contract for the erection of a number of small cabins or
pesthouses for the treatment of tuberculosis and other
diseases, and is now engaged in the construction and erection
of said buildings on said lot for the treatment of
tuberculosis and other diseases aforesaid for his individual
gain. (4) That the plaintiff Luther H. Cherry is the owner of
a lot adjoining the said lot of the said Williams of the same
size, between which there is no obstruction or protection,
and that the said Cherry, who has a wife and children, lives
within one hundred (100) feet of the said lot on which are
being erected the buildings aforesaid; that the plaintiffs N.
J. Bakke, J. W. Case, G. A. Hood, J. T. Wade, W. B. Young,
and others are also owners of lots on the same street located
within a few feet of the said lot on which the said Williams
is erecting the buildings aforesaid. (5) That the said lot of
the said Williams is located in a thickly populous section of
the city, and on the said street where not only plaintiffs,
but a large number of other people, reside, and that the
erection and use of said buildings for the purposes aforesaid
are in violation of the rights of the plaintiffs, and, if
permitted to be erected and completed, and used for the
purposes aforesaid, will work irreparable and permanent
injury and loss to the plaintiffs. (6) That the plaintiffs
are advised and believe that the disease or diseases for the
treatment of which said buildings are being erected are
infectious and contagious, and a menace to the public health,
and, if defendant is permitted to use said buildings for the
treatment of said disease or diseases, the health of the
plaintiffs and the public will be endangered thereby, and
that consequent loss of health and life will follow the
construction and use of said buildings for the treatment of
such disease or diseases as the defendant has determined to
treat in said buildings. (7) That the plaintiffs are
suffering or about to suffer, not only irreparable injury in
the matter aforesaid, but they are also forced to sustain
irreparable and permanent loss by the depreciation of their
property located in close proximity to the said lot by reason
of the location of said buildings on the said lot of
defendant for said purposes, and by reason of the further
fact that the defendant is, as plaintiffs are advised and
believe, insolvent and utterly unable to respond in damages
for the injury and loss which they have already sustained,
and will continue to sustain. (8) That if the defendant is
permitted to complete said buildings and to use them for the
purposes of treating tuberculosis and other diseases, the
plaintiffs and their neighbors, who reside on the same
street, will be made to suffer loss and permanent injury,
unless the court intervenes for their protection, and
restrains the defendant from the continuance of his work in
the erection of said buildings, and that the private injury
resulting therefrom is greatly in excess of any benefit to be
derived therefrom." Defendant, admitting his purpose to
construct and use buildings for the treatment of
consumptives, and at the place indicated, offered a large
amount of evidence, including affidavits of specialists,
eminent in their profession, and in the treatment of
tuberculosis in hospitals and otherwise, to the effect that
"a sanitarium for the treatment of consumptive patients,
located in the city of Greensboro, properly maintained and
conducted, would not be a menance to the health of the
community in which it is situated, nor to the public health;
that such sanitariums are conducted in large and populous
cities all over the country where the climate is suitable for
the patients, and that experience has shown that such
sanitariums are not a menace to the public health, but rather
a benefit"; that the proposed locality is not thickly
populated, and consumption is not contagious, nor an
infectious disease; and that defendant is qualified to
conduct the proposed sanitarium properly and intelligently.
On considering the evidence offered by plaintiffs and
defendant, the restraining order was continued to the
hearing, in terms as follows: "This cause coming on to
be heard, and being heard upon the complaint and affidavits
herein filed, and it appearing to the court from the
complaint and affidavits of the plaintiffs in this cause that
the defendant is now erecting on the lot described in the
complaint buildings to be used for the treatment of
tuberculosis, and other infectious and contagious diseases,
and that said buildings are a menace to the public health and
threaten to cause irreparable and permanent injury and loss
to the plaintiffs, and, further, that the plaintiffs are
entitled to have the defendant, John Roy Williams,
temporarily restrained from the continuance of his work in
the erection of said buildings. Ordered that restraining
order heretofore issued be continued to the hearing."
Defendant excepted and appealed.
HOKE
J.
The
authorities in this state will uphold the position that, when
there are facts in evidence which give good reason to believe
that the owner of property in the residential portion of a
thickly settled vicinity is about to devote it permanently to
a use which imports serious menace to the health of the
owners and occupants of adjacent property, such user should
be restrained until the facts on which the rights of the
parties depend can be properly determined at the final
hearing. The conditions suggested, if established, come well
within the definition of an actionable nuisance, and, if
there is a well-grounded apprehension that neighbors will be
unreasonably exposed to...
